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Lourenco v. Eastern Concrete Materials

March 28, 2008

JOAO LOURENCO AND IDALINA M. LOURENCO, HIS WIFE, PLAINTIFFS-APPELLANTS/ CROSS-RESPONDENTS,
v.
EASTERN CONCRETE MATERIALS, INC. AND MICHAEL MULLINS, INDIVIDUALLY AND/OR AS AGENT, SERVANT AND/OR EMPLOYEE OF EASTERN CONCRETE MATERIALS, INC., DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS.



On appeal from Superior Court of New Jersey, Law Division, Union County, L-4162-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 15, 2008

Before Judges Fuentes and Chambers.

This personal injury action arose from a construction accident in which plaintiff Joao Lourenco, a laborer in the process of connecting a piece of equipment to a generator, was struck by a cement truck and pushed into the generator. The jury found defendants Eastern Concrete, the owner of the cement truck, and Michael Mullins, its driver, eighty percent at fault and plaintiff twenty percent at fault for the happening of the accident. The jury awarded plaintiff all of his claimed economic damages, consisting of $9,800 for lost wages and $38,000 in medical bills. However, the jury allowed only $9,500 for plaintiff's past and future pain, suffering and disability and loss of enjoyment of life. Once the trial court molded the verdict, plaintiff was awarded a judgment of $46,613.60. Plaintiff's motion for a new trial or in the alternative an additur was denied by the trial court.

On appeal, plaintiff seeks a new trial on the issue of damages, contending that the award for non-economic damages in the amount of $9,500 is manifestly unjust. Plaintiff also contends that the trial court's erroneous evidentiary ruling deprived plaintiff of the opportunity to confront the defense videographer with a prior inconsistent statement and constituted harmful error. In the cross-appeal, defendants argue that if a retrial is ordered, the new trial should be on both liability and damages.

While we agree that the trial court erred in not allowing the videographer to be impeached with his prior inconsistent statement, the error was harmless in the context of this trial. Further, while the damage award was low, it is supported by the evidence when viewed most favorably to the defense and hence does not shock the conscience of the court. We affirm.

I.

This lawsuit arises out of a construction accident that took place on August 4, 2004, when plaintiff was working as a laborer on a project to place concrete uprights to hold a highway sound barrier. Plaintiff was in the process of connecting an electric powered vibrator to a generator, when a cement truck belonging to defendant Eastern Concrete and driven by defendant Mullins, struck plaintiff, pushing him into the generator.

The record is undisputed that, as a result of this accident, plaintiff sustained six broken ribs. Plaintiff's expert, Dr. David Lessing, an orthopedic surgeon, testified that the broken ribs constituted a permanent injury and that due to the scar tissue that was formed in the muscles in the rib cage, plaintiff would experience pain when taking deep breaths and lifting heavy objects, and he could also have trouble sleeping.

The orthopedic surgeon who testified for the defense, Dr. Michael Bercik, stated that the rib fractures would have healed within six weeks after the accident. He acknowledged that plaintiff had sustained "a mild degree of permanent physical impairment or injury" due to the broken ribs. He agreed that the rib injury left plaintiff with small amounts of scar tissue around the areas of the fractures, and as a result, plaintiff may experience occasional pain from these injuries. Changes in the weather and strenuous activity such as lifting heavy objects may cause pain. Dr. Bercik testified that while the injuries would not prevent plaintiff from doing what he could do before, he might feel achiness after certain activities due to these injuries that he would not otherwise have felt.

Plaintiff also sustained deep vein thrombosis in his calves due to the accident. While plaintiff's expert Dr. Lessing testified that this was a permanent injury which would likely cause further health complications, Dr. Ronald Pallant, a vascular surgeon, testified for the defense that the deep vein thrombosis had most likely resolved and would be "very unlikely to cause any long-term disability."

A CAT scan taken after the accident indicated that plaintiff sustained a contusion to the liver and a laceration to his spleen, but there was no medical testimony indicating that these were permanent injuries, nor was there any medical testimony indicating that these injuries caused plaintiff any pain, impairment or disability.

Dr. Lessing testified that plaintiff sustained a low back injury in the accident, namely, disc bulges. This contention was disputed by Dr. Bercik, the defense orthopedist, who testified that the disc bulges were part of the ...


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