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Lourenco v. Eastern Concrete Materials

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 natural aging process and were not caused by the accident.

Plaintiff was hospitalized for ten days after the accident. His treatment consisted of bed rest, pain medication, and therapy. Three months after the accident, he was medically cleared to go back to work.

While he is able to work, plaintiff testified that he now does less strenuous work. He stated that his ribs hurt all of the time, and that the pain increases when he picks things up from the ground or bends over for two or three minutes. His job requires him to lift steel rods weighing twenty to twenty-five pounds and dig with a shovel. He testified that he sometimes takes five minute breaks, which become more frequent with heavier work. After bending for awhile he finds that he needs to place his hands on his back for support. He indicated that the injuries from the accident cause him daily pain, which he treats with medication. The pain is also troublesome when he goes to sleep.

II.

We will address plaintiff's contention that the trial judge erred in refusing to allow plaintiff's counsel to impeach the videographer who testified for the defense with inconsistent statements made at his deposition.

The defense presented two surveillance videotapes taken of plaintiff at work on October 31 and November 1, 2005.*fn1 The videographer, Jeffrey Coughlin, testified that he "obtained videotape footage whenever possible of Mr. Lourenco when he was in view without being obstructed by construction equipment, fencing, things along those lines." The videographer's nine hours of surveillance on October 31, 2005, resulted in a tape of only twelve minutes and ten seconds long. His nine hours and forty-five minutes of surveillance on November 1, 2005, resulted in a forty-six minute tape. The surveillance tapes showed plaintiff working at his job, and provided evidence of the type of physical work plaintiff was able to perform despite his injuries.

On cross-examination, defense counsel asked the videographer whether he "had reason to believe that the purpose of the [surveillance] assignment was to document Mr. Lourenco engaging in vigorous activities that were inconsistent with injuries that he claimed." The videographer replied "no." Defense counsel sought to impeach videographer with the inconsistent statement made at his deposition. At his deposition, the videographer acknowledged that he believed that the purpose of his surveillance was to show plaintiff engaged in activities that were inconsistent with his claims.

Plaintiff's counsel maintains that the fact that the videographer believed he was employed to catch plaintiff in vigorous physical activity could affect the videographer's decision on what to film and explain why the two days of surveillance resulted in less than an hour of filmed activity.

In his summation, defense counsel argued that the videotapes did not show plaintiff taking a break or holding his back on the job. Due to the court's ruling, plaintiff's counsel maintains that he was unable to make a counterargument that the videographer was biased or not credible and may have selectively videotaped plaintiff.

The trial court's evidentiary ruling was incorrect. Counsel is permitted to attack the credibility of a witness on cross-examination. N.J.R.E. 611(b). The credibility of a witness may be attacked by showing bias. Cavanaugh v. Skil Corp., 331 N.J. Super. 134, 174-76 (App. Div. 1999), aff'd, 164 N.J. 1 (2000). A prior inconsistent statement may also be used to attack the credibility of a witness. State v. DiRienzo, 53 N.J. 360, 383 (1969); see N.J.R.E. 607. Deposition testimony of a witness may be used "for the purpose of contradicting or impeaching" a witness at trial. R. 4:16-1(a). The fact that the videographer believed that he was hired to videotape plaintiff engaging in activities inconsistent with his injuries went to the issue of the videographer's bias. The fact that the videographer denied having this belief at trial but had testified differently at his deposition also went to the issue of his credibility. Accordingly, the trial court erred when it did not allow plaintiff's counsel to impeach the credibility of the videographer with his prior inconsistent deposition testimony.

Under the circumstances of this case, however, we are not convinced that this error was "clearly capable of producing an unjust result." R. 2:10-2. The videotapes helped undermine plaintiff's testimony only to the extent that they showed plaintiff's ability to work without breaks or apparent pain at the particular times being videotaped. There is no suggestion that the videotaping of a particular scene was stopped before plaintiff left the view of the videographer. Since the videotapes covered only a portion of each day, a factfinder who found plaintiff otherwise to be a credible witness could conclude that plaintiff experienced pain at other times not reflected in the tapes.

Accordingly, while the trial court erred in not allowing the impeachment of the videographer, that error was harmless.

III.

Plaintiff moved for a new trial on the issue of damages, contending that the award of $9,500 for non-economic damages was shockingly low. The court rules provide that a motion for a new trial shall be granted "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." R. 4:49-1(a). The jury's verdict is entitled to "very considerable respect" and will be overturned only in "clear cases." Baxter v. Fairmont Food Co., 74 N.J. 588, 596-97 (1977). Accordingly, a new trial is warranted only where the amount of damages is so disproportionate to the injuries incurred that the award shocks the conscience of the court and allowing the verdict to stand would be manifestly unjust. Monheit v. Rottenberg, 295 N.J. Super. 320, 328 (App. Div. 1996).

When deciding whether the quantum of damages allowed by the jury was inadequate, the court must "consider the evidence in the light most favorable to the defendants." Id. at 327. "On a motion for a new trial, all evidence supporting the verdict must be accepted as true, and all reasonable inferences must be drawn in favor of upholding the verdict." Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). In reviewing the trial court's decision on the motion for a new trial, we apply the same standard that controlled the trial court's decision, except that we must give due deference to the trial court's "'feel of the case' including credibility." Monheit v. Rottenberg, supra, 295 N.J. Super. at 327-28.

When deciding the motion for a new trial, the trial judge acknowledged that the damage award for pain and suffering was "low" and that she was "a little surprised," but stated that she was "not shocked." She acknowledged that the proofs established that plaintiff had pain during the six weeks that it took the rib fractures to heal, stating "I do not think there is any doubt that he [plaintiff] had pain at the beginning part, and a lot of it." However, the trial judge noted that the defense doctor testified that plaintiff sustained a mild permanent injury, that the small amounts of scar tissue on his ribs would not prevent him from doing things but he would ache, and that he would have pain in his ribs with weather changes or strenuous lifting. The trial judge stated that she thought plaintiff had credibility problems with his testimony on how much pain medication he claimed to be taking, and that based on his testimony one could infer that he really was not taking as much medication as he claimed.

Looking at the evidence from the point of view most favorable to defendant, plaintiff sustained in the accident injuries consisting of six broken ribs which healed within six weeks but resulted in a mild permanent injury; deep vein thrombosis in his calves resulting in no permanent disability; and a contusion to the liver and laceration of the spleen, both of which had no permanent consequences. Since the jury allowed medical bills for plaintiff's treatment of his disc bulges, for the purpose of this analysis, we will assume that the jury also attributed the disc bulges to the accident.

The amount awarded for non-economic damages supports a finding that plaintiff was hospitalized for ten days, experienced six weeks of pain and discomfort, was unable to work for three months, but had a good recovery with only some mild occasional discomfort and no material limitations on his activities. This finding is generally consistent with Dr. Bercik's testimony. The damage award, although low, is not manifestly unjust and does not shock the conscience of this court.

Affirmed.


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