December 28, 2007
DORETHEA MATTHEWS, PLAINTIFF-APPELLANT,
NEW JERSEY MANUFACTURERS INSURANCE COMPANY, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, L-109-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 14, 2007
Before Judges Skillman, Winkelstein, and Yannotti.
Plaintiff Dorethea Matthews was injured in an automobile accident. After settling with the tortfeasor, she filed an underinsured motorist (UIM) claim against her automobile insurance carrier, defendant New Jersey Manufacturers Insurance Company (NJM). Her claim was subject to the verbal threshold.
Following NJM's rejection of an arbitrator's award, a jury unanimously found that plaintiff did not suffer a permanent injury as a result of the accident. The court entered judgment in favor of defendant.
On appeal, plaintiff raises four issues. First, she challenges the trial court's failure to allow in evidence the Social Security Administration's determination that she was totally disabled as a result of the accident. Second, she claims that defense counsel's closing argument introduced facts that were not in evidence. Third, plaintiff claims that the court improperly admitted into evidence the findings from a supplemental report of defendant's expert, Dr. Roy Friedenthal. Finally, plaintiff challenges the court's charge to the jury, which instructed the jury that it must find that plaintiff sustained a permanent injury as a prerequisite to awarding her damages.
Having carefully considered the arguments in light of the law and the record, we reject plaintiff's arguments and affirm.
On December 24, 1999, plaintiff was making a right turn in her motor vehicle when she was struck from behind by a vehicle driven by Diana Figura. Plaintiff settled her claim against Figura for $99,000 of Figura's $100,000 coverage limit.
Plaintiff's automobile insurance policy had UIM coverage with a $300,000 limit. In her complaint against NJM, she alleged that she sustained multiple injuries from the accident, including a right carpal tunnel injury, lumbar disc herniations, and other spinal injuries. At trial, plaintiff testified that as a result of the accident, she experienced pain in her neck, back, legs, arms, and hands, as well as numbness in her right hand and legs. Her pain restricted her daily activities, and she could not return to her job as a cook. She claimed a total wage loss in excess of $300,000.
Plaintiff was treated by several doctors, including general practitioner Dr. Robert Labaczewski; orthopedic surgeon Dr. Gregory Maslow; and Dr. Vannette Perkins, a pain management physician.
Dr. Labaczewski testified that in his opinion, plaintiff suffered permanent injuries as a result of the car accident, and he restricted her from returning to work. Dr. Maslow performed carpal tunnel surgery on her in November 2000. He testified that plaintiff's neck injury, low back injuries, and carpal tunnel injury were causally related to the accident and were permanent.
Defendant presented evidence that plaintiff suffered from carpal tunnel syndrome and low back injuries prior to the automobile accident. She was diagnosed with bilateral carpal tunnel syndrome in March 1990, and she had carpal tunnel surgery in May 1990. Doctors' notes from February 1997 through October 1999 showed that plaintiff was suffering from back and shoulder pain.
Prior to her automobile accident, plaintiff was employed by the Vineland Residential Center as a cook. She had previously been employed as a packer. In March 1996 and March 1997, she suffered low back injuries while lifting boxes at work. Dr. Jon Heist, who examined her for a workers' compensation claim, noted in December 1997 that these work accidents caused plaintiff a "permanent disability . . . in the amount of 20% permanent partial total based on the residuals of a lumbosacral sprain and strain with right sciatic neuralgia." Plaintiff returned to work full time as a cook after these accidents, and continued working until the December 1999 automobile accident.
Dr. Friedenthal, an orthopedic surgeon and defendant's expert, evaluated plaintiff in September 2003. He issued a November 18, 2003 report based on that evaluation and on prior medical reports. He opined at trial that plaintiff's carpal tunnel syndrome was not caused or aggravated by the December 1999 automobile accident and that she suffered from this condition before the accident. Dr. Friedenthal also expressed an opinion that plaintiff's back injuries were not permanent and that she recovered from soft tissue injuries she sustained in the accident.
Dr. Friedenthal issued a supplemental report dated March 8, 2006, based upon additional medical records he had been provided. A dispute arose as to the timeliness of this report, as plaintiff's counsel indicated that he did not receive a copy of the report prior to trial. Defendant claimed that the report was timely supplied, and that the documents on which the report was based were available to plaintiff before the discovery end date.
The court offered plaintiff the option of a mistrial, but plaintiff declined the offer. Nonetheless, the court limited Dr. Friedenthal's testimony about the supplemental report to the results of an EMG dated March 10, 1990. Dr. Friedenthal testified that the EMG showed severe carpal tunnel in both of plaintiff's wrists; that a comparison of EMGs before and after the accident showed that plaintiff had severe carpal tunnel syndrome prior to the accident.
Defendant had plaintiff examined by another orthopedic surgeon, Dr. Mark Sobel. Dr. Sobel's report indicates that plaintiff suffered no "ongoing orthopaedic disability" from the December 1999 automobile accident. Dr. Sobel did not testify at trial.
In May 2000, plaintiff applied for Social Security Disability Insurance benefits and Supplemental Security Income benefits. After the Social Security Administration initially denied both claims, she was provided a hearing before an Administrative Law Judge (ALJ). The issue before the ALJ was whether plaintiff, who was forty-eight years old at the time, was disabled for purposes of receiving Social Security benefits. The ALJ determined, based on plaintiff's "history of progressively worsening chronic back pain" since her December 1999 automobile accident, her limited education and her unskilled work background, that plaintiff was unable to perform her "past relevant work," and that she was under a disability as defined by Social Security statutes and regulations.
The trial court ruled that the ALJ's decision would not be admitted into evidence. The judge reasoned that:
The . . . plaintiff received a disability award, she's not precluded from stating that, and, when she is questioned, or any other witness stating that, but I am going to instruct the jury, very clearly . . . in the following fashion: That . . . the real issue in this case . . . is whether or not [plaintiff] was permanently injured by this car accident or whether these injuries either corrected themselves, or whether they came from a pre-existing condition. None of that was raised before the administrative law judge. That issue wasn't even touched upon. . . . [T]he administrative law judge simply had the medical records that were available, and will be presented through the doctor's testimony here, and the testimony of the plaintiff.
I am going to instruct the jury . . . that that Social Security award is not to be considered by them either way. Because . . . they will have an opportunity to hear witnesses, they will have an opportunity to hear the doctors, they will have an opportunity to hear from the plaintiff, and, . . . in this prior proceeding, there was no opportunity to hear the argument of defense counsel, or to hear from defense . . . counsel's witness.
Plaintiff did not, and testified that she could not, return to her job as a cook after the automobile accident. In 2001, she moved to Virginia, where she attempted to return to work as a dish washer, but she worked only three days because her back pain prevented her from lifting and from standing or sitting for long periods.
Before plaintiff's expert economist, Dr. Robert Wolf, testified at trial, the judge instructed him that although it was appropriate for him to factor plaintiff's Social Security Disability award into his calculations, he was not to refer to those payments as a "disability award." Dr. Wolf offered an opinion as to the "monetary consequences" plaintiff experienced as a result of the automobile accident. After reviewing plaintiff's prior employment history, he testified to the following:
I determined what her probable earnings would have been as a state employee to the age of 66, when she would have been eligible for unreduced Social Security benefits. From those earnings, I subtracted for her obligation to pay state and federal taxes, I also subtracted for the five percent that she was contributing and paying for toward her own pension. And, I reduced all future losses back to what we call current dollar value, which took away money from her.
And, her pre-injury economic value in 2004 dollars, was $505,692 dollars after these various subtractions. From that amount, I reduced by $222,412 dollars, which is the total amount for the rest of her working life, of her Social Security award, and that gave me a sub-total of $283,280 dollars. I then added to that her need for some limited housework, at about three hours a week, at a market replacement rate of roughly $15 dollars. And, projecting that to an age of 75, yielded a domestic services loss of $50,512 for . . . a total loss of $333,792 dollars.
I then had to do one other calculation. As a result . . . of being unable to work, she became entitled to a pension from the State of New Jersey, and had she not been injured and worked to normal retirement, she would have also been entitled to a pension, but at a higher amount for fewer years.
And, I assessed a difference between the pension she was receiving in her post-injury status, compared to what it would have been had she not been injured. And, the results were that she was somewhat better off getting a reduced post-injury pension but for a greater number of years, compared to what her pension would have been for a lesser number of years. And, she was economically enhanced to the tune of $23,899 dollars, so I subtracted that from her economic losses.
And, the bottom line or total economic loss was $309,893 dollars in what we call current dollar value. . . .
Q: So that bottom line total loss number is what she's actually out economically for the rest of her life as a result of this?
A: Yes, that includes past and future wage losses, the appropriate credit for the fact that she's getting a Social Security award, and also the fact [that] she's somewhat better off having this early pension from the Public Employees Retirement System.
In his charge, the judge instructed the jury that although plaintiff received income from Social Security Disability, which Dr. Wolf had considered in his calculations, it was only to use this information to show that plaintiff received this particular source of income. The jury was not to use it to determine if plaintiff was permanently disabled.
Against this record, we first address plaintiff's claim that the trial court erred by not admitting plaintiff's Social Security disability determination in evidence. We find no error.
Defendant was not a party to the Social Security proceedings. Though the doctrine of collateral estoppel bars relitigation of issues in lawsuits arising from different causes of action, it is applied only when the party asserting the bar shows, among other things, that "the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding." Selective Ins. Co. v. McAllister, 327 N.J. Super. 168, 173-74 (App. Div.), certif. denied, 164 N.J. 188 (2000). Here, collateral estoppel is inapplicable because the party against whom the doctrine is sought to be asserted, NJM, was not a party to or in privity with a party in the Social Security proceedings.
Another reason existed to bar the Social Security determination. The evidence presented during the Social Security proceedings related only to plaintiff's post-accident medical treatment. The ALJ relied on plaintiff's limited education and work background, and the injuries she sustained in the December 1999 accident, to conclude that she was disabled under the Social Security Act. Whether her pre-accident injuries and disabilities contributed to her inability to work was not at issue. Thus, the issues addressed by the ALJ were not the same as the issues in this trial. Consequently, the Social Security Administration determination that plaintiff is disabled was inadmissible.
Next, we turn to plaintiff's claim that defense counsel introduced new facts in his closing. Defense counsel mentioned Dr. Sobel's expert report. He also made reference to Dr. Heist's diagnosis of plaintiff as having a permanent low back injury prior to the automobile accident. Though neither Dr. Sobel nor Dr. Heist testified at trial, plaintiff did not object to the remarks during the summation.
"[C]counsel is allowed broad latitude in summation and counsel may draw conclusions even if the inferences that the jury is asked to make are improbable, perhaps illogical, erroneous or even absurd." Bender v. Adelson, 187 N.J. 411, 431 (2006). Although wide latitude is permitted, counsel's comments "must be restrained within the facts shown or reasonably suggested by the evidence adduced." State v. Bogen, 13 N.J. 137, 140, cert. denied sub nom. Lieberman v. New Jersey, 346 U.S. 825, 74 S.Ct. 44, 98 L.Ed. 350-51 (1953). When the party challenging comments in summation does not object, the comments are reviewed under the plain error standard. Fertile ex rel. Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 493 (2001). The issue, then, is whether counsel's comments were "clearly capable of producing an unjust result." R. 2:10-2.
Here, counsel's comments in summation did not introduce new facts as plaintiff claims. During trial, defense counsel elicited from Dr. Wolf that he never saw or considered Dr. Friedenthal's or Dr. Sobel's reports. In those reports, the physicians concluded that plaintiff did not suffer a permanent orthopedic disability as a result of the automobile accident. Plaintiff did not object to Dr. Wolf's testimony. In closing, defense counsel said that Dr. Wolf "never had the records of Dr. Friedenthal or Dr. Sobel indicating the disability." That remark was a direct reference to Dr. Wolf's testimony. The remark was fair comment on the evidence. Counsel did not introduce facts not in evidence. We find no plain error.
Similarly, though defense counsel made reference in his summation to Dr. Heist's opinion that plaintiff had a permanent low back disability before the December 1999 accident, that reference was to testimony that was elicited during trial. Though there may have been grounds for an objection at the time the testimony was provided, plaintiff made no such objection. Indeed, with regard to Dr. Labaczewski's testimony about Dr. Heist's report, it was plaintiff, on redirect examination, who asked Dr. Labaczewski if Dr. Heist's report was accurate. We therefore reject plaintiff's argument that defendant exceeded the bounds of proper summation.
Next, we address whether the court improperly permitted references to Dr. Friedenthal's supplemental report. Again, we find no error. Though discovery ended in August 2005, and Dr. Friedenthal issued a supplemental report in March 2006, the trial judge restricted Dr. Friedenthal's testimony to a limited reference in the report. He was only permitted to testify about the 1990 EMG, and plaintiff had been made aware of the EMG results at the time of defendant's summary judgment motion in July 2005. The medical records upon which the report was based had also been made available to plaintiff's counsel for inspection, in March 2005. Also significant is that plaintiff's counsel was offered a mistrial, but he rejected that offer. In context, the judge's actions in permitting the limited testimony were not an abuse of discretion.
Finally, we turn to plaintiff's claim that the trial court erred by requiring her to prove that she suffered a permanent injury before she could be compensated for her prior and future wage losses. In general, plaintiff is correct that a permanent injury is not necessary to support an award of economic damages. Martin v. Chhabra, 374 N.J. Super. 387, 394-95 (App. Div. 2005). Nevertheless, in the context of the trial evidence, the court's jury instruction on this issue was appropriate.
A plaintiff subject to the limitation on lawsuit option in her automobile insurance policy may not sue for "non-economic loss" unless she meets one of six "verbal threshold" categories, the sixth of which is a "permanent injury within a reasonable degree of medical probability." N.J.S.A. 39:6A-8a. "Non-economic loss" is defined as "pain, suffering, and inconvenience." N.J.S.A. 39:6A-2i. "Economic loss," which is not subject to the verbal threshold, is defined as "uncompensated loss of income or property, or other uncompensated expenses, including, but not limited to, medical expenses." N.J.S.A. 39:6A-2k.
A plaintiff who fails to vault the verbal threshold is precluded from recovering only non-economic losses; however, a plaintiff may generally recover unreimbursed income losses. Martin, supra, 374 N.J. Super. at 394-95; see also Jefferson v. Freeman, 296 N.J. Super. 54, 67-68 (App. Div. 1996) (upholding jury verdict for economic damages even though jury reached "no cause" verdict on verbal threshold non-economic damages). In Jefferson, supra, for example, we upheld a verdict for economic damages independent of the determination of whether the plaintiff's injuries met the verbal threshold, after the jury was told the amount of time the plaintiff was out of work and was asked to determine "the number of weeks . . . within those dates . . . [plaintiff] was out of work . . . as a result of this accident." 296 N.J. Super. at 66-67.
We have also held, however, that when a plaintiff failed to prove that he sustained a permanent injury, he was properly precluded from submitting to the jury his claim for future lost wages when his claim was "based on a permanent injury within the meaning of N.J.S.A. 39:6A-8a." Miskelly v. Lorence, 380 N.J. Super. 574, 578-79 (App. Div.), certif. denied, 185 N.J. 597 (2005). There, the plaintiff suffered a brain injury in an automobile accident. Id. at 575. At trial, he presented a vocational and rehabilitation expert who testified as to the amount of plaintiff's projected lost earnings over his "work lifetime." Id. at 576.
During the charge conference, the trial judge noted that the vocational expert relied upon medical information indicating the existence of a permanent injury; thus, the court reasoned that if there was no permanent injury, there logically could not be an award premised upon an expert's opinion that accepted that the plaintiff suffered a permanent injury. Ibid. The court recognized, nonetheless, without elaboration, that "in some cases future lost wages may be deemed appropriate for a period of time even though the injury is not deemed to be 'permanent' within the meaning of N.J.S.A. 39:6A-8a." Id. at 579-80 n.3.
Here, the trial judge relied on Miskelly. He said that plaintiff's "whole position is that she was injured and from the day she was injured, she was permanently injured and she's never been able to work." The judge further observed that,
In this case, there is no segregated, set[-]aside number of days or weeks where there is a specific, temporary loss of work.
If there were that type of claim where she was out for a few weeks, a few months, that type of claim [I] think could go to the jury.
We agree with the trial judge that the evidence could not support an award of non-economic damages unless the jury concluded that plaintiff was permanently disabled. Dr. Wolf testified as to what plaintiff's total economic loss would be based on her prior income, her life expectancy, her economic life expectancy, her pension considerations, and appropriate credits for her Social Security award. The record was insufficient for the jury to calculate plaintiff's loss for any defined period of time. The entire thrust of the expert testimony was that plaintiff would be medically precluded from working for the remainder of her economic life. Dr. Wolf indicated that plaintiff suffered an "economic death." The evidence simply would not have supported a calculation of lost wages for less than plaintiff's entire work-life expectancy. For the jury to arrive at such a conclusion would have required it to determine, first, when plaintiff could have returned to work, and second, if she did return to work, what her net lost earnings would have been. See Ruff v. Weintraub, 105 N.J. 233, 238 (1987) (proper measure of damages for lost income in personal injury action is net income after taxes). The record did not permit the jury to decide these questions without speculating.
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