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Holland v. Wagenblast

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 14, 2008

KAREN D. HOLLAND, PLAINTIFF-RESPONDENT,
v.
DONALD WAGENBLAST, DEFENDANT-APPELLANT, AND DONNA M. WAGENBLAST,*FN1 DEFENDANT.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-1295-03.

The opinion of the court was delivered by: Curiam

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 26, 2007

Before Judges Axelrad, Payne and Sapp-Peterson.

Following a six-day trial, a jury awarded plaintiff, Karen D. Holland, damages after it found she sustained permanent injuries within the meaning of the verbal threshold statute, N.J.S.A. 39:6A-8(a), arising out of a motor vehicle accident with defendant, Donald Wagenblast. Defendant moved for a new trial or, in the alternative, remittitur and/or molding of the verdict. The trial judge denied the motion but agreed that defendant was entitled to a set-off against Social Security disability benefits plaintiff had been receiving. On appeal, defendant argues (1) the trial judge erred in admitting into evidence multiple medical records from plaintiff's non-testifying treating physicians that contained complex medical diagnoses; (2) plaintiff failed to establish and differentiate between the injuries she attributed to defendant's negligence and those stemming from an earlier accident; (3) his new trial motion should have been granted because the verdict was against the weight of the evidence; and (4) the jury's verdict must be reduced in accordance with the "collateral source" provisions of N.J.S.A. 2A:15-97. We reject each of these arguments and affirm.

The following facts were developed at trial. On July 8, 2001, plaintiff was rear-ended by defendant as she slowed her vehicle while approaching a traffic signal on Route 15 in Rockaway Township. The impact caused her vehicle to flip and roll. Emergency personnel removed plaintiff from her vehicle using the "jaws of life." She was transported to Morristown Memorial Hospital where she was admitted with a diagnosis of concussive syndrome and hypoglycemia. Plaintiff remained hospitalized for three days, during which she underwent diagnostic testing, including CAT scans of her cervical spine and brain, as well as X-rays of her chest and pelvis. The results of the diagnostic testing were normal. She was discharged with instructions to follow up with her treating physician. Thereafter, plaintiff treated with a number of medical professionals and also received treatment at the Traumatic Brain Injury Unit of Jamaica Hospital in New York. At the time of trial, she was still under the care of a psychiatrist.

Plaintiff testified about difficulty communicating and "an anger problem" she has experienced since the accident. She indicated that she lacks full function of her shoulder, is unable to reach high or lift objects, and has problems when the weather is bad. She has difficulty recalling certain things and makes it through her day with the use of post-it notes placed around her house that remind her of daily chores. She utilizes a voice recorder to remind her about appointments, a palm pilot to process information, and a laptop computer. She remains unable to tie her own shoes or maintain employment as an actress because she can not remember her lines. Plaintiff also testified that as a result of her memory difficulties, she is no longer able to care for her daughter and had her institutionalized at the Upstate (New York) Home for Children and Adults where she remains.

The jury learned that prior to the July 2001 accident, plaintiff had been involved in a 1992 rear-end motor vehicle accident. Plaintiff testified that as a result of this accident, she suffered from a "very bad memory problem," speech problems, chronic headaches, depression, blackouts, and back pain. She treated with a psychologist, psychiatrist, and a neurologist. In early 1993, the Social Security Administration determined that she was permanently disabled, and plaintiff retired from her position as a full-time corrections officer later that year. At the urging of her psychologist, plaintiff attended Adelphi University, where, in 1996, she earned a Master's Degree in Early Childhood Special Education, with a concentration in Early Intervention. Plaintiff moved to Maryland to teach special-needs children. She then became a resource teacher, assisting regular classroom teachers in working with special-needs students. In 1998, plaintiff remarried and moved to New York where she continued teaching. Two years later, plaintiff ended her teaching career in order to pursue an acting career, which she discontinued following the 2001 accident.

Two medical experts testified on plaintiff's behalf: Dr. Jonathan Fellus, a board certified neurologist, and Dr. Richard Schenk, a board certified orthopedic surgeon. Both doctors reviewed numerous medical records from both the 1992 and 2001 accidents. Based upon his examination of plaintiff and a review of plaintiff's medical records, Dr. Fellus concluded that she made a "functional recovery" from her 1992 injury after treatment, with plaintiff being "able to cope and get around the problems" despite "still [having] underlying damage." He testified that "absolutely everything in the records was . . . . consistent with and supported the fact that [plaintiff] had traumatic brain injury as a result of the motor vehicle collision in July of 2001." In his opinion, plaintiff was no longer in a position to maintain gainful and competitive employment. When asked if plaintiff's 2001 injury was permanent, Dr. Fellus responded,

The opinion is . . . that the brain can try and recover as best it can up to a year, a year and a half, maybe two years, depending on how old you are at the time of your injury, and then much beyond two years, three years, certainly things become plateaued out and that is more or less where you're going to be with perhaps a very slight ups and downs depending on circumstances or maybe some medication or strategies. But by and large, by two to three years, that is where the brain's natural recovery has definitely ended. And really, most of the recovery occurs in the first six to 12 months. And so whatever problems you're left with at that point are the problems that you will struggle with for many, many years to come.

Dr. Schenk, who specializes in orthopedic trauma and adult reconstruction, testified that he examined plaintiff in April 2004, took a history, and conducted multiple range of motion tests. He found a positive impingement sign, indicative of a supraspinatus tendon injury. He noted that initially plaintiff's doctors prescribed a conservative course of treatment for plaintiff's shoulder, consisting of physical therapy and cortisone shots. However, when the treatment did not produce relief, plaintiff underwent arthroscopic surgery, which revealed a partial tear in the supraspinatus tendon and a tear in the labrum tendon. Dr. Schenk opined, based upon his own physical examination and review of plaintiff's prior medical records, that plaintiff's shoulder was permanently injured as a result of the 2001 accident, and her complaints were consistent with a post-traumatic injury that developed into arthritis, which he opined would worsen over time.

Plaintiff also produced Dr. Matityahu Marcus, an economist, who testified as to plaintiff's economic losses stemming from the accident. Defense counsel objected to Dr. Marcus' testimony, arguing that the opinion was a net opinion based solely upon a conversation with plaintiff in which she indicated that if her acting career did not go well, she would hope to return to teaching. Defendant argued that as a result of that conversation, Dr. Marcus projected a loss of income of $462,000, based upon plaintiff's last employment as a teacher, although plaintiff had not worked as a teacher since 2000 and was collecting two disability pensions unrelated to her teaching position that "collectively total about what she made as a teacher." Further, defendant urged that Dr. Marcus could not project future earnings based upon plaintiff's prior teaching employment. The court reserved ruling on the objection until she had the opportunity to hear his testimony and read his report.*fn2

Dr. Marcus testified that his opinion was based upon his interview with plaintiff, from whom he obtained information about her education, past employment, and past and future career decisions. He calculated plaintiff's lost wages, making concessions for the time plaintiff was pursuing her acting career, and assumed a return to teaching in October 2004 but for the July 2001 motor vehicle accident. Based upon plaintiff's undergraduate and advanced degrees, as well as her previous experience, Dr. Marcus projected an annual net teaching salary of $34,700 per year. Using a statistical table, he found the average age of retirement for plaintiff, based on her skill level and occupation, and adjusted it for the present value of the future wages. Plaintiff advised him of her need for "help around the house." In addition, at trial, he was asked to "assume" there was a need for home health care, even though it was not being provided at that time. Consequently, Dr. Marcus did not calculate the cost of a home health aide for plaintiff, but did find that in the Moorestown, New Jersey area, home health aides made approximately $18.50 an hour. Ultimately, Dr. Marcus opined that plaintiff incurred a loss of income, past and future, of $463,650.

Drs. Ivan Dressner and William Head testified on behalf of the defense. Dr. Dressner, a board certified neurologist, testified that he reviewed plaintiff's medical course from 1991 through the time of trial and that he personally examined plaintiff in November 2004. His initial observations revealed that plaintiff was well-groomed, without anxiety, with normal speech and intelligence. However, when he questioned plaintiff about her history, she became upset. In his opinion, based upon his experience and the medical literature, head trauma patients are at their worst at the time of the trauma, but the natural progression is that these patients become better over time, not worse. In reviewing plaintiff's three-day hospital admission immediately after the July 2001 accident, he noted that plaintiff's mental status was reportedly normal prior to discharge. He also testified that the hospital records revealed that plaintiff's Glaskow Coma Score, which was thirteen at the time of her admission, was a normal fifteen prior to her hospital discharge. Additionally, Dr. Dressner highlighted that two days post-accident, plaintiff was alert and oriented times three,*fn3 a normal finding, having no speech, language or stuttering problems. Finally, he noted that the two CAT scans of plaintiff's brain were normal. Dr. Dressner concluded that that these diagnostic results were inconsistent with a finding of a brain injury. To highlight his opinion that plaintiff had not sustained a traumatic brain injury as a result of the 2001 accident, Dr. Dressner pointed to a letter of recommendation plaintiff wrote for her home health aide in 2003, a three-page article written for the August 2006 edition of Exceptional Parent magazine, as well as plaintiff's testimony at trial and her recall ability during her lengthy deposition.

Dr. William Head, a board certified psychiatrist and neurologist, testified that he examined plaintiff for two hours on July 16, 2004, and concluded that plaintiff did not sustain any objective "psychiatric injuries" in terms of "cognitive impairment" as a result of the 2001 accident. He noted that plaintiff's objective testing, specifically CAT scans, MRIs and EEGs taken after the 2001 accident, were all normal, thus ruling out brain injury. He also expressed his opinion that plaintiff's neuropsychological testing was subjective and unreliable. He concurred with Dr. Dressner that plaintiff's writings and published article demonstrated that she was competent and without evidence of brain injury. He opined that her ability to communicate her feelings in writing evidenced "highly developed cognitive ability." Dr. Head also stated that from his review of plaintiff's deposition testimony, plaintiff did not manifest any impairment.

At the close of all the testimony, the court conducted a charge conference, during which defendant lodged objections to the admissibility of numerous documents. Defendant first objected to the introduction of a letter from the Social Security Administration dated May 26, 1999, which plaintiff proffered (1) as evidence outlining the circumstances under which plaintiff was permitted to work and (2) to rebut testimony from Dr. Head, who suggested that plaintiff defrauded Medicare. The court admitted the letter under N.J.R.E. 803(c)(8) as "a statement contained in a writing made by a public official[.]" Defendant also objected to documents he categorized as "the catch-all": (1) Cognitive Rehabilitation Services reports; (2) a note of Dr. Catherine Mindolovich, Ph.D., Jamaica Hospital Medical Center; (3) records from Dr. Kornbleuth; (4) reports from the Center for Cognition and Communication; (5) reports from Maimonides Medical Center; (6) reports from Dr. Hu of Rehabilitation Medicine Associates, P.C.; (7) office notes of Dr. Jonathan Silver; and (8) records from Dr. Richard Gasalberti. Defendant argued that the documents were hearsay, addressed fairly complex subject matter, and their exclusion was required under Nowacki v. Cmty. Med. Ctr., 279 N.J. Super. 276, 283 (App. Div.), certif. denied, 141 N.J. 95 (1995), absent testimony from the doctor who rendered the particular diagnosis.

The court acknowledged that it did not "have every single piece of paper in front of [it]" but that "[m]aybe there's a reason why some come in and some don't." Plaintiff's counsel advised the court that he understood the court's ruling, would redact the objectionable portions of the records, and show them to defense counsel. In response, defense counsel told the court, "Judge, you've -- there are 60 odd pages. I don't have those, every one of those. I can't tell you I've reviewed them as to what's there so I have to rely on [plaintiff's counsel] to show me or to pick out what he thinks may cross the line[.]"

The jury returned a verdict in favor of plaintiff, finding plaintiff twenty-five percent negligent and defendant seventy-five percent negligent. The jury awarded plaintiff $600,000 in damages, which the court molded to reflect the jury's apportionment of negligence. The court entered judgment in favor of plaintiff for $485,221.75. Defendant filed a motion for a new trial and/or remittitur. The trial court denied the motion, but determined that defendant was entitled to an additional reduction of the verdict by $40,440 as an offset against plaintiff's receipt of Social Security benefits through the end of 2007. The court entered an order of final judgment in the amount of $441,253.98. Defendant's ensuing appeal followed.

I.

Defendant first contends the trial court erred in admitting into evidence the medical records of plaintiff's non-testifying treating physicians. Defendant maintains that the disputed records should have been excluded pursuant to N.J.R.E. 808, which requires the exclusion of opinions in medical records absent the production of the declarant as a witness. Defendant submits that the trial court admitted the records "without any effort to satisfy [the conditions of N.J.R.E. 808]." Defendant additionally argues that not only was he deprived of the opportunity to cross-examine the authors of these various reports, but also that the trial court erred when it did not (1) examine the records prior to their submission, (2) hold an evidentiary hearing regarding the records, or (3) make any findings as to their trustworthiness.

A trial court's evidentiary rulings are accorded substantial deference and will not be disturbed on appeal absent a finding that the court abused its discretion in admitting or excluding evidence. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000) (citing State v. Morton, 155 N.J. 383, 453, 470 (1998)). N.J.R.E. 808 provides, [e]xpert opinion which is included in an admissible hearsay statement shall be excluded if the declarant has not been produced as a witness unless the trial judge finds that the circumstances involved in rendering the opinion, including the motive, duty, and interest of the declarant, whether litigation was contemplated by the declarant, the complexity of the subject matter, and the likelihood of accuracy of the opinion, tend to establish its trustworthiness.

While admission of physical findings pursuant to the business records exception, N.J.R.E. 803(c)(6), to the hearsay rule is permitted, admissibility may be circumscribed by "the degree of complexity of the procedures utilized in formulating the conclusions expressed in the [expert's] report." State v. Matulewicz, 101 N.J. 27, 30 (1985). See also Biunno, Current N.J. Rules of Evidence, quoting 1991 Supreme Court Committee Comments on N.J.R.E. 803(c)(6), 808 (2007). Thus, "medical opinions in hospital records should not be admitted under the business records exception where the opponent will be deprived of an opportunity to cross-examine the declarant on a critical issue such as the basis for the diagnosis or cause of the condition in question." Nowacki, supra, 279 N.J. Super. at 282-83.

In Nowacki, supra, the plaintiff sought damages for injuries sustained as a result of a fall she suffered while undergoing radiation treatment at the Community Medical Center. Id. at 280. The essence of the dispute between the parties centered around the plaintiff's claim of negligence and the defendants' assertion that the plaintiff suffered pathological fractures independent of the fall. Ibid. On the first day of trial, the plaintiff successfully moved to exclude from evidence proofs related to a subsequent pathological fracture sustained by the plaintiff. Id. at 281. The trial judge redacted, from hospital records admitted into evidence, any references to the diagnosis of pathological fracture and opinions related to causation. Ibid. The judge also precluded the defense expert, who did not prepare the reports, from testifying regarding those portions of the records. Ibid.

On appeal, the defendants argued that statements included within hospital records were admissible at the time of trial as business records. Ibid. We stated:

While there are cases supporting the admission of physical findings pursuant to the business records exception to the hearsay rule, see State v. Gardner, 51 N.J. 444, 461-62, 242 A.2d 1 (1968); Falcone v. New Jersey Bell Telephone Company, 98 N.J. Super. 138, 148, 236 A.2d 394 (App. Div. 1967), certif. denied, 51 N.J. 190, 238 A.2d 475 (1986); Webber v. McCormick, 63 N.J. Super. 409, 416, 164 A.2d 813 (App. Div. 1960), the Court in Matulewicz made clear that it is "the degree of complexity of the procedures utilized in formulating the conclusions expressed in the [expert's] report" which determines whether it is too complex to be admitted under the business records exception. Matulewicz, supra, 101 N.J. at 30, 499 A.2d 1363. See also Biunno, Current N.J. Rules of Evidence, quoting 1991 Supreme Court Committee Comments on N.J.R.E. 803(c)(6), 808. [Id. at 283.]

Here, the trial judge agreed with defense counsel that to the extent the medical records contained complex medical diagnoses, the records were inadmissible. However, the court also ruled that under N.J.R.E. 803(c)(4), Statements for Purposes of Medical Diagnoses or Treatment, any portion of the records which described plaintiff's symptoms and complaints were inadmissible, if it's a diagnosis but if -- it does say under 803[(c)(4)], if it's a statement made for purposes of treatment that describes a symptom it's admissible. So, if that's what it is, it goes in. If it contains diagnoses, if it contains the hearsay that -- in a complex manner without the doctor being here to explain it or otherwise it doesn't go in[.]

The court also ruled that resolution of the question, whether any statement plaintiff made was given in good faith for purposes of treatment rather than for purposes of obtaining a favorable result in any future litigation, would be for the jury to determine.

We find no abuse of the court's discretion in admitting the letter from Social Security and medical records containing plaintiff's description of her symptoms and complaints.

Benevenga, supra, 325 N.J. Super. at 32. Nor do we find that the court mistakenly exercised its discretion or abdicated its gatekeeping responsibilities when it admitted the treatment records, as redacted, from the various non-testifying doctors. We reject defendant's argument that the court did not perform its gatekeeping function by admitting the disputed treatment records "without any examination by the court before permitting their admission." Plaintiff's counsel advised the court that he understood the scope of the court's ruling that treatment records containing complex medical diagnoses must be redacted before the court would permit the jury to consider portions of the records that merely described plaintiff's complaints and symptoms. Plaintiff's counsel represented to the court that he would "work to redact the materials and show [defense counsel]." Defense counsel, acknowledging that he had not reviewed all of the disputed documents, expressed his intent to rely upon plaintiff's counsel to undertake the requisite redactions. Having chosen to rely upon plaintiff's counsel's judgment as to what should or should not be redacted prior to submission to the jury and raising no further objections to the records based upon the inadequacy of the redaction, defendant may not, on appeal, object to the very procedure he implicitly endorsed. Lucia v. Monmouth Med. Ctr., 341 N.J. Super. 95, 102-03 (App. Div. 2001).

See also Pressler, Current N.J. Court Rules, comment 2.2 on R. 2:10-2.

II.

Defendant next contends that plaintiff failed to distinguish between the injuries she sustained in the 1992 accident and the 2001 accident. Specifically, defendant argues that plaintiff failed to establish and separate her cognitive injuries and limitations. Defendant relies upon Davidson v. Slater, 189 N.J. 166 (2007), to argue that such a comparative evidentiary presentation was required. He further contends that "separate jury questions were required as to causation and permanency of the shoulder injury versus the brain injury and its aggravation[,] if any."

"The need for a plaintiff to produce a comparative medical analysis remains dependent on traditional principles of causation and burden allocation applicable to tort cases generally. Those principles are what determine the need for comparative evidence." Id. at 184.

When aggravation of a pre-existing injury is pled by a plaintiff, comparative medical evidence is necessary as part of a plaintiff's prima facie and concomitant verbal threshold demonstration in order to isolate the physician's diagnosis of the injury or injuries that are allegedly "permanent" as a result of the subject accident. Causation is germane to the plaintiff's theory of aggravation of a pre- existing injury or new independent injury to an already injured body part. In such matters, a plaintiff generally bears the burden of production in respect of demonstrating that the accident was the proximate cause of the injury aggravation or new permanent injury to the previously injured body part. [See O'Brien (Newark) Cogeneration, Inc. v. Automatic Sprinkler Corp. of Am., 361 N.J. Super. 264, 274-75 (App. Div. 2003)] (explaining that in routine personal injury aggravation claims plaintiff must bear burden of production that defendant's negligence was proximate cause of injuries and damages suffered).

Such evidence provides essential support for the pled theory of a plaintiff's cause of action and a plaintiff's failure to produce such evidence can result in a directed verdict for defendant. [See Reichert v. Vegholm, 366 N.J. Super. 209, 213-14 (App. Div. 2004).] [Id. at 185-86.]

Dr. Schenk testified that plaintiff's shoulder injury was a new permanent injury causally related to the 2001 accident. Neither side argued that there was any pre-existing shoulder injury. Defense counsel questioned Dr. Schenk at length as to the absence of any reference to a shoulder injury in the hospital and treatment records from Morristown Memorial Hospital, although plaintiff had been hospitalized there for three days immediately following the accident. Additionally, during closing arguments, defense counsel noted that the jurors "heard hardly anything about [the shoulder injury] from the plaintiff other than, again, some pain with the weather. It may have some damage value but it's limited and plaintiff seems to concede that by saying so little about it."

We are convinced that there was no necessity for separate jury questions as to causation and permanency of the claimed shoulder injury versus the claimed brain injury. The jury was aware that plaintiff's cause of action related to two distinct injuries for which she claimed permanency and was required to present her proofs. Moreover, the court properly instructed the jury that "plaintiff has asserted that these permanent injuries are the result both as to her shoulder and as to her brain[.]"

Turning to plaintiff's brain injury, the record supports the finding that plaintiff sufficiently distinguished for the jury the extent of her injuries as a result of the 2001 accident versus any residual injuries from the 1992 accident. Dr. Fellus testified as to plaintiff's condition after both accidents, relying not only on his examination of plaintiff but also his review of plaintiff's medical records.

Dr. Fellus testified that after the 1992 accident, plaintiff complained of cognitive defects including loss of the ability to form new or short term memory and learn new information efficiently, as well as changes in mood without control. He concluded that the complaints were consistent with a brain trauma. However, he testified that plaintiff's "clinical course was towards improvement." He noted that after her rehabilitation, plaintiff was functioning day-to-day with the exception of a slight setback from 1999 to 2000. Ultimately, Dr. Fellus concluded that plaintiff had made a functional recovery from her 1992 injury after her treatment.

Concerning the 2001 accident, Dr. Fellus opined that the force of the impact, in addition to the rolling and spinning of plaintiff's vehicle, put torque on her brain, much like wringing a towel, straining and stretching the material. Dr. Fellus opined that plaintiff's complaints after the 2001 accident were consistent with a brain injury following the 2001 motor vehicle accident. When asked if plaintiff sustained a traumatic brain injury as a result of the 2001 accident, Dr. Fellus said that "absolutely everything in the records . . . was consistent with and supported the fact that she had traumatic brain injury as a result of the motor vehicle collision in July of 2001." When asked if plaintiff's 2001 injury was permanent, Dr. Fellus provided,

The opinion is -- the opinion is that the brain can try and recover as best it can up to a year, a year and a half, maybe two years, depending on how old you are at the time of your injury, and then much beyond two years, three years, certainly things become plateaued out and that is more or less where you're going to be with perhaps a very slight ups and downs depending on circumstances or maybe some medication or strategies. But by and large, by two to three years, that is where the brain's natural recovery has definitely ended. And really, most of the recovery occurs in the first six to 12 months. And so whatever problems you're left with at that point are the problems that you will struggle with for many, many years to come.

We are satisfied that plaintiff presented a sufficient comparative analysis of the injuries from the two accidents.

III.

Defendant argues that his motion for a new trial should have been granted as the jury's finding that plaintiff's permanent brain injury was proximately caused by the 2001 accident was against the weight of the evidence, and the finding that plaintiff incurred a loss of income because of the 2001 accident was both legally erroneous and against the weight of the evidence. Having reviewed these arguments in light of the record and applicable law, we find no basis for our intervention. Plaintiff's contentions simply invite us to impermissibly substitute our judgment for that of the jury and the trial judge. Gallichio v. Gumina, 35 N.J. Super. 442, 447 (App. Div. 1955). We conclude that the arguments advanced are without sufficient merit to warrant additional discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.

Although the record does not reveal a ruling by the trial court on whether Dr. Marcus' expert opinion was a net opinion, we are satisfied that the jury was entitled to consider his testimony and opinion. N.J.R.E. 703 requires that an expert opinion be supported by facts or data either in the record or of a type usually relied on by experts in the field. The net-opinion rule reflects the well-established notion "that an expert's bare conclusions, unsupported by factual evidence, [are] inadmissible." Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). The rule, moreover, often focuses "on the failure of the expert to explain a causal connection between the act or incident complained of and the injury or damage allegedly resulting therefrom." Ibid. An expert opinion "must be based 'primarily on facts, data or other expert opinion established by evidence at the trial.'" Id. at 525 (quoting Evidence Rule 56(2), now embodied in N.J.R.E. 703). Thus, without an adequate factual basis, an expert's testimony fails as an impermissible "net opinion." Nesmith v. Walsh Trucking Co., 123 N.J. 547, 549 (1991).

There was no dispute that plaintiff had earned an advanced degree in early childhood education, taught in the field a number of years before embarking upon an acting career, and later renewed her teaching license. Dr. Marcus acknowledged that his opinion was based upon the assumption that plaintiff would return to teaching if she were unsuccessful in her acting career. Taking into consideration that expressed intention, her education and past employment, he arrived at an opinion as to plaintiff's loss of income. Defendant's arguments that plaintiff's expressed intentions were self-serving were credibility issues for the jury. There was, however, an adequate factual basis for Dr. Marcus' testimony and it was therefore properly considered by the jury. Id. at 549.

IV.

Finally, defendant argues that N.J.S.A. 2A:15-97 requires an offset of plaintiff's past receipt and future entitlement to Social Security and disability pension benefits against her loss of income claim. Defendant submits that plaintiff has been receiving disability pension benefits since 1992 and these benefits duplicate the damages awarded by the jury for her traumatic brain injury. N.J.S.A. 2A:15-97 provides,

In any civil action brought for personal injury or death, except actions brought pursuant to the provisions of P.L.1972, c. 70 [(N.J.S.A. 39:6A-1 to -35)], 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[.]

On its face, N.J.S.A. 2A:15-97 eliminates double recovery by directing the court to deduct from any tort judgment the amount received by plaintiff from collateral sources. In determining by what amount, if any, damages should be reduced, "only . . . 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" should be treated as offsets. Parker v. Esposito, 291 N.J. Super. 560, 567 (App. Div.), certif. denied, 146 N.J. 566 (1996). "In other words, future collateral benefits are deductible only to the extent that 'they can be determined with a reasonable degree of certainty.'" Ibid. (Citation omitted).

Here, as part of its ruling on defendant's motion for a new trial, the court addressed the issue of offset:

I will deduc[t] the full amount of collateral source to disabilities as reflected by Dr. Marcus. As I say the reports that went through had to do with disability and again not just before that but through this entire period of time disability findings going to Social Security. And I think it is appropriate to deduct those amounts from this judgment.

I will deduct that amount that Dr. Marcus has indicated as being at least through 2007. I[t] will be interesting whether or not[,] because this is a permanent injury and is required to do so under the verbal threshold[,] whether or not that means that any future disability necessarily would have to be deducted because of the permanency[.] I think [that] is something that perhaps a higher court has to decide. But I will not indicate that every future disability is to be deducted.

I will deduct it through 2007. And I think the judgment is accurate in that way.

Dr. Marcus testified that he calculated plaintiff's disability benefits to 2007 because plaintiff, at that time, was scheduled for re-examination then. He concluded that the amount of the benefits to that point was $47,090 gross and $40,440 net. Based upon this evidence, the court determined that defendant was entitled to a $40,440 further reduction from the damages award. Defendant provided no evidence from which the court could conclude, with "a reasonable degree of certainty," the value of future collateral disability benefits beyond 2007. Consequently, defendant is not entitled to an additional offset. See Parker, supra, 291 N.J. Super. at 566 (refusing to place the balance of plaintiff's award in escrow pending the future determination of benefits for the purpose of offsetting).

The trial judge's findings on the amount of disability benefits subject to off-set is supported by "adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) and is entitled to our substantial deference.

Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)).

Affirmed.


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