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Miskelly v. Lorence

October 13, 2005

TODD MISKELLY, PLAINTIFF-APPELLANT,
v.
RICHARD L. LORENCE, JR., DEFENDANT-RESPONDENT, AND JOHN J. LYONS, JOHN DOE 1-5, AND ABC COMPANY, 1-5, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-505-91.

The opinion of the court was delivered by: Stern, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted September 14, 2005

Before Judges Stern, Fall and Levy.

Plaintiff appeals from an "order of judgment," entered on June 17, 2004, based upon a jury verdict of "no cause for action" after a four day trial.*fn1 The jury found that plaintiff did not sustain a "permanent injury" as required to obtain recovery under the "[l]imitation on lawsuit option" (frequently called the "verbal threshold"), pursuant to the Automobile Insurance Cost Reduction Act of 1998 (AICRA), N.J.S.A. 39:6A-8. As a result, plaintiff was precluded from recovering both non-economic losses and future lost wages.

Plaintiff argues on appeal that the threshold embodied in N.J.S.A. 39:6A-8a does not require a plaintiff to prove permanent injury in order to recover for economic damages. He alleges "that as a result of his injury, he suffered future economic damages since he is unable to perform at his pre-injury neuropsychological level" and argues "that it was not necessary to prove a permanent injury or substantial impact [on his life] in order to recover future economic damages."

Liability was not contested at trial. Plaintiff testified that after the accident he had problems with his "concentration, memory [and] lack of focus." Dr. Carl Edward Bradford, a neuro- psychologist, testified that plaintiff suffered from a "brain injury" and "would not be successful" in graduate school, which he had planned to attend before the accident. Dr. Bradford further testified that plaintiff's difficulties with concentration and memory, and his cognitive problems, were neuropsychological impairments caused by the motor vehicle accident.

Dr. Robert Wolfe, a vocational and rehabilitation economist, testified based on Dr. Bradford's diagnosis of "neuropsychological and cognitive impairments" and "brain injury" that plaintiff's "future employment opportunities would be limited." Dr. Wolfe also referred to the reports of other doctors relating to "injury-related emotional impairments," "physical limitations," and "neurological deficits," and concluded that plaintiff's "injury-related impairments . . . would negatively impact on academic and vocational functioning, which would have a further negative impact on earning capacity." According to Dr. Wolfe, plaintiff's "current expected earnings post-accident" were only $518,153 during his "lifetime," as opposed to $1,433,310 projected for an individual with an undergraduate degree. Thus, plaintiff's "net damage" was $915,157 for the "net difference" over his "work lifetime."

At the charge conference, the trial judge noted that the claim of future wage losses had to be premised on a finding by the jury of a permanent injury as testified to by Dr. Bradford, and ruled that he would not submit that issue to the jury in the absence of a finding of a permanent injury. According to the judge:

I believe that common sense dictates that for the jury to award anything for a brain injury that affects what this young man's going to make for the rest of his life, particularly when the expert says he's relying on medical information that says there's a permanent injury, requires before the jury can award any damages that there be a permanent injury.

If there is not permanent injury then clearly there is not pain and suffering loss, that we are all in agreement with.

But the same sort of logic dictates that you can't give someone hundreds of thousands of dollars, $1.2 or whatever to compensate them for economic loss in the future that's all premised on Dr. Wolfe's acceptance that there's a permanent injury. I mean, it's just illogical. ...


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