The opinion of the court was delivered by: Walls, District Judge
Defendants Glenn Gaston, Juan Loaces, Juan Mendez, and Jose Perez (collectively the "Defendants") move for judgment notwithstanding the verdict ("j.n.o.v.") pursuant to Fed. R. Civ. P. 50(b) to set aside the jury's cumulative award of $3 million in damages under the New Jersey Wrongful Death Act to plaintiffs William Rosario, Stephen Rosario, Esteban Rosario, Jr., and Joanne Rosario Lorenzi (collectively the "Plaintiffs"), children of the decedent, Esteban Rosario.
The parties appeared at trial earlier this year on Plaintiffs' claims that the Defendants, all police officers with the City of Union City Police Department, failed to provide adequate medical care to their father, Esteban Rosario, after he was placed under arrest on October 27, 1999, causing his death. During the course of the trial, the Court had the occasion to remind the parties, outside the presence of the jury, that under New Jersey's wrongful death law, damages to compensate for the emotional loss suffered by the decedent's family were unavailable. Rather, the law provides - as discussed at greater length later - only those damages for the pecuniary value of the lost advice, counsel, and guidance are available. In presenting evidence on damages, Plaintiffs' counsel called to the stand plaintiffs Stephen Rosario, William Rosario and Joanne Rosario Lorenzi, each of whom described his or her relationship with his or her father. Esteban Rosario, Jr. is mentally disadvantaged and institutionalized. Testimony as to his relationship with his father was offered by several of his siblings. No expert testimony relating to damages was offered.
The jury was instructed as to the limitations on damages for the wrongful death claim *fn1 . After deliberations, the jury returned a cumulative verdict of $3 million to the plaintiffs on their wrongful death claim (the jury also awarded $2.5 million to Esteban Rosario's estate for his pain and suffering endured before his death, damages that are not now at issue). The verdict was as follows: $500,000 each for Stephen Rosario and Esteban Rosario, and $1 million each for Joanne Rosario Lorenzi and Esteban Rosario, Jr. With this motion, Defendants challenge that verdict on the ground that the evidence of Plaintiffs did not prove the pecuniary value of any lost advice, counsel, and guidance.
As an initial matter, the Court finds that Defendants have not waived the arguments advanced on this motion. Although Plaintiffs' counsel argued in its papers that the Defendants waived their right to make a j.n.o.v. motion by failing to object at trial, counsel did not raise the point at oral argument, perhaps realizing the weakness of the position. At any rate, counsel for Defendants raised the issue of the appropriate measure of damages under the wrongful death action on several occasions, and the issue was the subject of numerous discussions between the parties and the Court. Indeed, defense counsel made motions for directed verdict both at the close of Plaintiffs' case and before closing arguments. In short, there is no basis for concluding that Defendants waived their right to bring this motion.
Turning to the merits, the Court's inquiry must begin with the damages provisions of the Wrongful Death Act, N.J.S.A. 2A:31-5:
In every action brought under the provisions of this chapter the jury may give such damages as they shall deem fair and just 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.
The seminal interpretation of the statute is Green v. Bittner, 85 N.J. 1, 424 A.2d 210 (1980). There, the New Jersey Supreme Court made clear that under the statute, damages were limited to the pecuniary value of the loss, including loss of companionship, advice, and counsel. 85 N.J. at 12, 424 A.2d at 215. *fn2 "Companionship and advice in this context must be limited strictly to their pecuniary element. The command of the statute is too clear to allow compensation, directly or indirectly, for emotional loss. Our cases uniformly so hold. (Citations omitted.) Companionship, lost by death, to be compensable must be that which would have provided services substantially equivalent to those provided by the `companions' often hired today by the aged or infirm, or substantially equivalent to services provided by nurses or practical nurses. And its value must be confined to what the marketplace would pay a stranger with similar qualifications for performing such services." Id., 85 N.J. at 12, 424 A.2d at 215.
Similarly, the Court observed:
The loss of guidance, advice and counsel is similarly to be confined to its pecuniary element. It is not the loss simply of the exchange of views, no matter how perceptive, when child and parent are together; it is certainly not the loss of the pleasure which accompanies such an exchange. Rather it is the loss of that kind of guidance, advice and counsel which all of us need form time to time in particular situations, for specific purposes, perhaps as an aid in making a business decision, or a decision affecting our lives generally, or even advice and guidance needed to relieve us from unremitting depression. It must be the kind of advice, guidance or counsel that could be purchased from a business advisor, a therapist, or a trained counselor, for instance. That some of us obtain the same benefit without charge from spouses, friends or children does not strip it of pecuniary value. 85 N.J. at 14, 424 A.2d at 217.
This Court now must determine whether Plaintiffs presented sufficient evidence to support the $3 million award under Bittner. Other courts, in similar circumstances, have evaluated the quality of the evidence to see if it afforded a jury the opportunity to arrive at a rational damages amount without undue speculation. As example, in Brown v. Kennedy Memorial Hospital-University Medical Center, 312 N.J.Super. 579, 711 A.2d 1370 (App. Div. 1998), the New Jersey Appellate Division affirmed the trial judge's ruling that the evidence presented on damages did not support jury awards of $400,000 for loss of housekeeping and clerical services, and $425,000 for loss of counseling services and funeral expenses. Citing the Bittner rule, the Court noted regarding the award for loss of housekeeping and clerical services, "Plaintiff presented no evidence of either the value of the housekeeping and clerical services, or the counterbalancing value of the decedent's living expenses. Here, it would have been feasible to present evidence of present economic value of the kinds of services Jeanette provided. Damages replace services that could otherwise be bought, and that the decedent would have likely provided had she lived." Id., 312 N.J.Super. at 594, 711 A.2d at 1377. That Court further observed, "The jury was futilely without guidance concerning both the value of the household services the decedent had been providing and the value of the services plaintiff was providing her. A jury is not authorized to base a decision on conjecture or speculation. Jurors were required to estimate the time period in which plaintiff would continue to require such clerical and household services; but that estimate could not have been long, as plaintiff was age 86 as of the date of trial." Id.
The Appellate Division also confirmed the striking of the award for lost companionship by the trial judge because of the lack of sufficient evidence, the duplication of these damages with the award for lost services, and a determination that the verdict was the result of sympathy and passion. The Appellate Division wrote:
Although there was evidence presented that Jeannette was a supportive companion to plaintiff after his wife's death, plaintiff offered no evidence to equate Jeannette's companionship to the cost of providing similar companionship, counsel or guidance from a paid helper. Although Green v. Bittner instructs that expert testimony is not necessary to place a value on prospective services of a minor child, it is clear that the Supreme Court cautioned that expert testimony is helpful to avoid leaving the jury to conjecture on valuation. Here, we are valuing the services of an adult. Quantification was feasible through expert testimony. The jury should not have been left to conjecture on this matter. Id., 312 N.J.Super. at 595, 711 A.2d at 1378 (citations omitted).
Unlike here, the plaintiff in Morris v. Krauszer's Food Stores, Inc., 300 N.J.Super. 529, 693 A.2d 510 (App. Div. 1997) presented the testimony of an expert, who calculated the loss of the decedent's services to her children, including the cost of paying someone to cook, clean, shop, and launder, and the loss of guidance, instruction and training, at $45 an hour until the time the youngest child was "emancipated." The total damages calculation by the expert was $677,500. The jury, however, awarded $1.5 million for loss of services. The Appellate Division allowed the verdict to stand, finding that "the jury was entitled on this record to find that the expert was conservative in calculating the loss of such intangible services as guidance, training and counseling for so many children," and holding that the award did not "shock our judicial conscience." Id., 300 N.J.Super. at 543, 693 A.2d at 517.
In Schiavo v. Owens-Corning Fiberglass Corp., 282 N.J.Super. 362, 660 A.2d 515 (App. Div. 1995), the decedent had been disabled in 1975 as a result of a car accident which injured his back; the last operation necessitated by the accident caused severe nerve damage leaving him incontinent. Decedent married his wife in 1986, after his complete disability but before his mesothelioma diagnosis. His physical activities were limited, but he and his wife took walks together and engaged in some "slight" recreational activities, though they mostly stayed home together. The jury awarded $150,000 for the pecuniary losses resulting from his death. The Appellate Court affirmed, observing: "Mrs. Shiavo testified that her husband helped her with problems to the best of his ability and that he had a 17.88 year presumptive life expectancy. The jury, of course, could have rejected this expectancy because of decedent's unrelated poor health. A $150,000 award for the pecuniary loss involved in 17.88 years or even some appreciably lesser time span of companionship, guidance, advice and counsel does not constitute a miscarriage of justice." Id., 282 N.J.Super. at 370, 660 A.2d at 519.
The Appellate Division upheld an award of $436,000 in Goss v. American Cyanamid Co., 278 N.J.Super. 227, 650 A.2d 1001 (App. Div. 1994), a wrongful death action involving the 1991 death of a 67-year-old worker from asbestos exposure. The Appellate Division upheld the award based on the following evidence:
Patullo died at the age of 67 with a remaining life expectance of 15.20 years. The evidence established that he and Mrs. Patullo had been married for forty-three years and enjoyed a very close marital relationship. Before Patullo's illness, they had an active social life, and were very close to their children and grandchildren. Patullo had Paget's disease, but he was able to walk, golf and exercise. After he contracted the cancer, he was unable to engage in these activities. Patullo was forced to leave work before he was diagnosed with asbestosis because of his Paget's disease, and spent his time thereafter helping around the house, including preparing dinner when Mrs. Patullo worked part-time. Patullo drove Mrs. Patullo everywhere because she did not drive. After Mrs. Patullo underwent two serious operations, Patullo cared for her. After the onset of Patullo's asbestos related illness, Mrs. Patullo had to do everything around the house herself and had to care for Patullo as well. According to Mrs. Patullo, after Patullo became ill, they never returned to a normal lifestyle.
Mrs. Patullo testified that Patullo provided her with emotional support. When asked, Mrs. Patullo did not specifically describe this emotional support, but testified that Patullo cared for her after she had two serious operations. Patullo used to help her prepare the meals, take her grocery shopping, run errands and help around the house. Additionally, Patullo managed the family finances. When Patullo died, Mrs. Patullo lost all of Patullo's services, companionship, guidance, advice and counsel, all of which had significant pecuniary value. Id., 278 N.J.Super. at 244-45, 650 A.2d at 1009-10.
The Appellate Division, in upholding the award, noted that it "may have been on the high side of the legitimate range of damages." Id., 278 N.J.Super. at 245, 650 A.2d at 1010. Nevertheless, the Court concluded, "Reasonable minds could accept the evidence at trial as adequate to support the jury's award for Patullo's wrongful death. In sum, there is no clear and convincing proof of a miscarriage of justice and we certainly do not perceive the sense of `wrongness' that is necessary to overturn the damage awards in these consolidated matters." Id. (citations omitted)
Finally, Tirrell v. Navistar Int'l, Inc., 248 N.J.Super 390, 591 A.2d 643 (App. Div. 1991) dealt with the death of a 28-year old worker who earned $35,000 a year as an oiler. The jury awarded $2.5 million on the wrongful death action and $50,000 for decedent's pain and suffering.
Plaintiff presented the following evidence on damages:
Plaintiff had testified in detail concerning the work decedent did at home and the time he spent with her and their four children, ages one, nearly four, six and seven years old at the time of their father's death. [Plaintiff's economic expert] factored into the loss equation the time a spouse normally spends working in the house (ten hours per week), even though he acknowledged that this was less than the time decedent normally worked at his house. After deducting what decedent would have paid for his personal expenses, the expert testified that there had been a net earned income loss of $104,000 to the time of trial and a loss of physical household services of $15,865 (then reduced by three percent for sickness). This estimate contained no pecuniary value for the loss of companionship, guidance or advice. Id., 248 N.J.Super. at 396-97, 591 A.2d at 646 (citations omitted).
On appeal, defendant sought to have the award overturned on the grounds that plaintiffs' expert testified that the family's net pecuniary loss as of the time of trial was $104,000, and that the most the jury therefore could have awarded for the remainder of decedent's working life was $1.6 million. The Appellate Division upheld the award: "[C]onsidering the work decedent did around the house and the damages for advice and companionship permitted by [Bittner], the $900,000 additional award, even if split equally among the widow and four children, would yield but $180,000 for a lifetime's loss of husband or father. If the jury accepted the fact that decedent would be promoted and potentially would be earning between $65,000 and $80,000 per year, the additional damages become insignificant." Id., 248 N.J.Super. at 408, 591 A.2d at 652.
Drawing lessons from these opinions, some which upheld awards and some which struck them, is not easy. But in each case, the jury was presented with at least some guidance for their damages determination. In some cases, it was expert evidence of the market value for the services provided by the decedent. In others, it was evidence describing with specificity the type of advice, services, and companionship provided by the decedent. And in each case, the jury was given evidence of the life expectancy of the decedent at the time of his or her death.
Turning to the evidence offered here, it is significant to note what is missing. No expert evidence was offered, despite the Court's February 6, 2003 caution to Plaintiffs' counsel that while expert testimony was not legally required, it was for practical purposes essential in providing sufficient evidence for a jury to make a rational determination. Even more troubling, the jury was given no evidence about Esteban Rosario's life expectancy. *fn3 Such evidence allows a jury to determine, if it wishes, the pecuniary value of advice, guidance, and counsel by assessing the annual or monthly value of such services and projecting that amount by the number of years or months that the decedent might live.
Plaintiffs' counsel called as witnesses Stephen Rosario, William Rosario, and Joanne Rosario Lorenzi. At oral argument on this motion, the Court read each witness's testimony that arguably went to the damages issue. Both sides agreed that the evidential excerpts read by the Court were complete in that they included all relevant, material portions of the witness's testimony.
William Rosario's testimony was:
Q: What are your earliest memories of your dad?
A: Well, my earliest memory of my dad, I remember him bringing us racing cars that took up the whole apartment. And I remember we used to have to get permission to put it together because it was so big. And my brother and I played with that for hours. And then actually he was everything to me. We happened to look alike and he was like my best friend.
Q: How old were you when you found out you looked like your father?
A: I always felt I looked in the mirror when I spoke to my father. And I always looked to him. And my kids and my wife always said we looked alike and my mannerisms are like his. I wish I was like him. He was well-liked. He was very understanding. Like I said, he was my world. I miss his laughter. I miss my dad.
Q: How did you feel at that point learning that your ...