September 27, 2007
GEORGE JOHNSON, AS GUARDIAN AD LITEM OF MATTHEW S. JOHNSON, A MINOR; AND GEORGE JOHNSON, INDIVIDUALLY, PLAINTIFF-APPELLANT,
CHRISTOPHER REHDERS, AN INDIVIDUAL; AND ROBIN REHDERS, AN INDIVIDUAL, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-521-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 10, 2007
Before Judges Lintner and Sabatino.
This appeal concerns the sufficiency of damages awarded by a jury to a minor in a dog bite case. On November 6, 2003, plaintiff,*fn1 Matthew S. Johnson, was visiting the home of defendants, Christopher and Robin Rehders, when he was bitten in the face by defendants' mixed breed dog "Rusty." At the time of the incident, Matthew was the age of fourteen or fifteen.*fn2
Matthew's father, George Johnson, was promptly notified about what had occurred. He drove to defendants' house and picked up Matthew, whose face was bleeding. Matthew's mother then took him to the emergency room of a local hospital. There, a plastic surgeon, Gregory Greco, M.D., attended to Matthew's facial wounds. The wounds consisted of two bite marks near Matthew's mouth and chin.
Dr. Greco closed the two wounds with fifty to sixty stitches. The procedure, which took approximately forty-five minutes, was complicated by difficulty in getting the injected anesthetic to sufficiently numb Matthew's face. Matthew testified that the procedure "hurt really bad." After several injections, the anesthesia finally took hold and the stitches were sewn.
During the next several days, Matthew felt acute pain in his face. He could not speak or eat normally and he did not leave his home.
Ten days later, on November 16, 2003, Dr. Greco removed the stitches. Matthew also found this procedure painful, but not as painful as the original suturing. He was advised that further medical attention to his scars would be needed after some time had passed. Matthew was also instructed to apply moisturizer and sunscreen to the scars, and to massage them periodically.
In June 2004 Matthew underwent a vascular laser procedure to attempt to reduce the persistent redness in and around his scars. The laser treatment also was painful and felt akin to the sensation of bee stings. The area turned purple for a few weeks and then slowly faded in color.
About a year after Rusty's attack, Matthew's scarring matured to its present condition. He remains with two curved scars near his mouth and chin, one that is about two centimeters in length, and the other that is about four and a half centimeters long.
In his de bene esse deposition, Dr. Greco opined that the scars caused by the dog bite were permanent in nature. He noted that, with more plastic surgery, the scarring might be abated by about fifty percent. The expected costs of such additional plastic surgery were estimated at $5000, plus facility and anesthesia fees of about $1600. Alternatively, Dr. Greco indicated that Matthew could have two dermabrasions performed to, in effect, sand down the scars, at a total cost of about $3000. To date, Matthew has not elected to have either of those procedures.
In his testimony, Matthew recounted that he continues to have physical sensations around his scars, that he has to apply sunscreen to them for outdoor activities, and that he feels the need to explain the cause of his scars in social settings.
Defendants acknowledged their responsibility for Rusty's dog bite under the strict liability statute, N.J.S.A. 4:19-16. The sole issue at trial was the measure of damages proximately caused to Matthew by the bite.
Plaintiff's counsel presented to the jury Matthew's testimony, as well as Dr. Greco's videotaped deposition. Plaintiff also moved into evidence three photographs taken of Matthew's face: one taken by his father on the day of the incident, another taken after the stitches were removed but before the laser procedure, and a third taken after the laser procedure. The jury also viewed Matthew's scars as he walked near the jury rail, with the consent of the parties. Defendants called no witnesses and offered no proofs, deciding not to call a plastic surgeon that had examined Matthew on their behalf.
After the judge charged the jury, it returned a lump-sum damages verdict of $5000. Plaintiff then moved for a new trial, or, in the alternative, for additur. The trial judge denied plaintiff's motion, and this appeal followed.
On appeal, plaintiff contends that the damages awarded by the jury were manifestly inadequate and disproportionate to his injuries. Additionally, plaintiff contends that a new trial should be granted because of allegedly prejudicial remarks made by defense counsel*fn3 during his opening statement and summation. Although we are unpersuaded that defense counsel's remarks were so prejudicial as to warrant a new trial, we agree that the damages award was manifestly insufficient and warrants redress.
R. 4:49-1 provides that a trial judge shall grant a motion for a new trial "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." See also Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977). Although courts must accord deference to the jury's role as fact-finder, "[i]n [the] pursuit of ultimate justice . . . a trial judge must intervene to correct an injustice when a damage award is patently inadequate or excessive . . . ." Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525, 533 (App. Div.) (granting a new trial on damages where the verdict failed to award an indisputably-injured plaintiff any sums for pain and suffering, apart from his documented lost wages), certif. denied, 180 N.J. 355 (2004). On appeal, we apply that same polestar of injustice. Ibid.; see also Von Borstel v. Campan, 255 N.J. Super. 24, 28 (App. Div. 1992).
With respect to the valuation of this teenager's scars, and the pain and suffering he experienced from the dog bite and his ensuing medical procedures, we are substantially guided by Tronolone v. Palmer, 224 N.J. Super. 92 (App. Div. 1988).
Tronolone involved a passenger in a car that struck a utility pole. The plaintiff suffered two deep lacerations around his right eye from the impact, one about an inch-and-a-half long and the other measuring about two-and-a-quarter inches. Id. at 95. Plaintiff's right ear also required a skin graft slightly over an inch in length. Id. at 96. Plaintiff had plastic surgery involving seventy-one stitches, but was left with residual scars. Ibid. It was uncertain whether further medical procedures would have improved plaintiff's appearance. Ibid. The defense offered no competing damages proofs. Ibid.
After the jury in Tronolone awarded plaintiff only $750 in damages for the injuries to his face and ear, plaintiff moved for a new trial, or, alternatively, for additur. The trial judge granted a modest additur of $2750, raising the award to $3500. Ibid. On appeal, we agreed that the original verdict was manifestly inadequate and warranted relief. However, we also concluded that the $2750 additur ordered by the trial judge was "an impermissible underevaluation of plaintiff's damages." Id. at 104. In particular, we noted that the plaintiff was a young man and that his scars left him with what was described as a perpetual frown. Ibid. We noted that we could have exercised our original jurisdiction and enhanced the additur amount ourselves to a fair and reasonable sum, but that "the unrevealing record" did not enable such an award because the photographs of plaintiff in the record were taken only a short time after his surgery and did not "accurately show the final result." Ibid. Accordingly, we vacated the judgment in Tronolone and remanded for a new trial. Ibid.
Here, we are convinced that the jury's $5000 award to Matthew for his two permanent facial scars from the dog bite, and for his attendant pain and suffering, was manifestly inadequate and unjust. If the $5000 award was reached by the jury to compensate Matthew solely for the costs of prospective surgery, such thinking would ignore his separate claims for pain and suffering, an incomplete valuation approach that we decried in Love, supra, 366 N.J. Super. at 532-33.*fn4 Conversely, if the jury somehow had injected notions of comparative fault into their assessment and discounted the damages accordingly, that would have been contrary to the compensatory policies underlying N.J.S.A. 4:19-16. The judge's bench comments in denying plaintiff's post-trial motion are rather general and do not offer more specific insight as to the strength of the evidence or the adequacy of the verdict.
In the present case, unlike in Tronolone, we have had the benefit of personally observing Matthew's present condition, with the consent of both counsel, at the appellate oral arguments. Those observations showed that Matthew's scars, particularly the lower one, remain quite prominent almost four years after the dog bite. We also have the benefit of the three photographs placed into evidence showing the progression of the injuries and the scarring. See Soto v. Scaringelli, 189 N.J. 558, 576 (2007) (recommending the preservation of an "accurate photographic record" of scarring to enable "meaningful appellate review").
In the reciprocal context of remittitur, the Supreme Court in Fertile v. St. Michael's Med. Ctr, 169 N.J. 481 (2001), instructed that where a jury's damages award is deemed excessive, a court should remit the award to "the highest figure that could be supported by the evidence," rather than to arrive at a figure that the court itself would have reached based upon its own "weighing and balancing." Id. at 500. "[S]uch an approach 'tampers least with the intentions of the jurors . . . .'" Ibid. (quoting Irene Deaville Sann, Remittiturs (and Additurs) in the Federal Courts: An Evaluation With Suggested Alternatives, 38 Case W. Res. L. Rev. 157, 191 (1987/88). On the flip side, in the context of additur, Fertile suggests that we should increase a deficient jury award to the lowest figure that reasonably can be supported by the proofs. Accordingly, we undertake that assessment, aided by the record proofs and our own observations of plaintiff in court.
Recognizing the extent and persistent nature of Matthew's injuries, his youth, and the policies underlying the dog bite statute, and also recognizing the costs and burdens associated with a new trial, we exercise our original jurisdiction under R. 2:10-5 and order an additur of $20,000, for a net award of $25,000, plus prejudgment interest. If defendants timely reject that sum on remand, a new trial on damages shall be conducted. Bitting v. Willett, 47 N.J. 6, 9 (1966).
The judgment of the Law Division is vacated, and the matter is remanded for the entry of a revised judgment, or for a new trial if so elected by defendants, consistent with this opinion.