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January 13, 2004.

MICHAEL MANDILE, Individually, and MICHAEL MANDILE, Administrator of the Estate Of MARIA MANDILE, Plaintiff(s),

The opinion of the court was delivered by: WILLIAM BASSLER, District Judge


After about a three week trial, the jury returned a verdict on October 15, 2003 awarding Plaintiff Michael Mandile $550,000, and $100,000 to the Estate of Maria Mandile. Defendant now raises two issues that the Court must decide before final judgment can be entered in this case: (1) the amount by which the judgment should be reduced to account for social security Page 2 disability benefits received by Plaintiff; (2) whether prejudgment interest should be awarded on a general verdict that does not segregate between future economic loss and non-economic damages.

  The Court heard oral argument on November 17, 2003.


  A. Set-Off For Social Security Disability Benefits

  The collateral source rule provides:
In any civil action brought for personal injury or death, except actions brought pursuant to the provisions of P.L. 1972 c.70 (C. 39:6A-1 et seq.), if a plaintiff receives or is entitled to receive benefits for the injuries allegedly incurred from any other source other than a joint tortfeasor, the benefits, other than workers' compensation benefits or the proceeds from a life insurance policy, shall be disclosed to the court and the amount thereof which duplicates any benefit contained in the award shall be deducted from any award recovered by the plaintiff, less any premium paid to an insurer directly by the plaintiff or by any member of the plaintiff's family on behalf of the plaintiff for the policy period during which the benefits are payable. Any party to the action shall be permitted to introduce evidence regarding any of the matters described in this act.
N.J.S.A. 2A:15-97. Under the collateral source rule, social security benefits to be received by a plaintiff after judgment must be deducted. Parker v. Esposito, 291 N.J. Super. 560, 566 (App. Div. 1996). However, "future collateral benefits are deductible only to the extent that for they can be determined with a reasonable degree of certainty." Id. at 567. That is, the Page 3 collateral source rule's phrase "`if a plaintiff . . . is entitled to receive benefits' refers only to those benefits to be paid post-judgment to which plaintiff has an established, enforceable legal right when judgment is entered and which are not subject to modification based on future, unpredictable events or conditions." Id. at 567. In reaching that conclusion, the Appellate Division recognized that "[a]nticipated future benefits may not be realized, thereby depriving the injured party of all or part of the jury's award." Id.

  Plaintiff states that the net social security benefits payable to him was $30,556.40 for 2002. Because there is no contention that that amount is subject to modification or uncertain, the gross judgment of $550,000.00 should be reduced by that amount, leaving a net judgment of $519,443.60. Plaintiff further suggests that there should not be any social security offset beyond the $30,556.40 because he has not received any further benefits and he will not be entitled to social security benefits until his worker's compensation benefits cease, which will be March 31, 2005. Defendant, however, claims that it is entirely possible that Plaintiff will receive social security disability benefits after March 31, 2005 because Plaintiff testified that once his worker's compensation benefits expired, he would begin to receive $960 per month in social security disability benefits; further, under the social security Page 4 regulations, a finding of disability is periodically reviewed by the Social Security Administration. Thus, noting that it is the plaintiff's burden to supply documents and records showing what duplicate benefits have and will be received, Defendant urges that Plaintiff must establish that he is not entitled to or will not receive additional social security benefits, or that the Social Security Administration will never again review Plaintiff's disability determination and award future benefits.

  During oral argument, Plaintiff's counsel agreed to make a written inquiry to the Social Security Administration to determine whether Plaintiff would in fact be entitled to social security benefits in April 2005. Plaintiff made such an inquiry by letter dated December 1, 2003. As confirmed during a telephone conference with the Court on December 23, 2003, counsel for both sides agreed that the Court should only wait a couple of weeks for a response from the Social Security Administration before rendering its decision. Having waited a few weeks and having received no word from the Social Security Administration, the Court must issue its decision based on what information it has available.

  While it is Plaintiff's burden to show what amount should be offset, Defendant has cited no case that stands for the proposition that a plaintiff must establish with a reasonable degree of certainty that he will not receive any future benefits. Page 5 Rather, to be deductible, the benefits to be paid post-judgment must be those "to which plaintiff has an established, enforceable legal right when judgment is entered and which are not subject to modification based on future, unpredictable events or conditions." Parker, 291 N.J. Super. at 567. Here, there is insufficient evidence to show that Plaintiff has an established, enforceable legal right to any social security benefits after March 2005, or that any such benefits will not be modified based on any future reviews by the Social Security Administration of Plaintiff's disability determination. Thus, the offset for social security disability benefits will be limited to $30.556.40.

  Finally, for each year of the years for which the social security deduction is being made, Plaintiff seeks credit in the amount of $1,091.40 for social security contributions he previously made. See Woodger v. Christ Hosp., 364 N.J. Super. 144, 154 (App. Div. 2003). In support thereof, Plaintiff has submitted his W-2 forms, which show that the total social security tax withheld for 1995 was $1,091.40. Although Defendant states that due to an illegible copy of the W-2 forms, it cannot take a position as to whether the amount of credit sought by Plaintiff is correct, Defendant concedes that Plaintiff is entitled to a credit against the social security offset in accordance with Woodger, Accordingly, the collateral source Page 6 deduction of $30,556.40 will be reduced by $1,091.40, resulting in a final net judgment of $520,535.00.

  B. Prejudgment Interest

  1. Preiudgment Interest On Michael Mandile's Verdict

  Federal courts sitting in diversity should apply state court rules on prejudgment interest. See Condus v. Howard Savings Bank, 999 F. Supp. 594, 597 (D.N.J. 1998). New Jersey Court Rule 4:42-11(b) generally permits prejudgment interest in products liability actions "provided that in exceptional cases the court may suspend the running of such prejudgment interest." However, Rule 4:42-11(b) does not allow prejudgment interest on any recovery for future economic losses. In contrast, prejudgment interest is not barred where there is a verdict for non-economic loss, i.e. pain and suffering, or past economic loss. Thus, the comments to subsection (b) states: "[c]onsequently, the jury will have to return, by special interrogatory, discrete verdicts for past economic damages, future economic damages, and a single lump sum for non-economic damages." Pressler, Current N.J. Court Rules, Comment on R. 4:42-11(b).

  Here, the verdict sheet was the subject of two final pretrial conferences, one before then Magistrate Judge Cavanaugh and the other before Magistrate Judge Arleo. The parties then consented to a verdict sheet, which was filed on October 15, 2003. Clearly, there was plenty of time and opportunity to amend Page 7 the verdict sheet to request segregated damages. Nonetheless, the jury verdict sheet did not ask the jury to render discrete verdicts on separate items of damages. Defendant argues that Plaintiff's failure to request discrete verdicts despite numerous opportunities to do so was a waiver of that right, and that therefore, prejudgment interest should not be allowed in this case because it cannot be determined whether the jury verdict is for non-economic loss or for future economic loss. Further, Defendant claims that based on the testimony of Plaintiff's ...

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