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Porras v. Township of Irvington

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 28, 2008

CHANTEL PORRAS AND ROY PORRAS, PLAINTIFFS-RESPONDENTS,
v.
TOWNSHIP OF IRVINGTON, TOWNSHIP OF IRVINGTON FIRE DEPARTMENT, OFFICERS AND CREW OF ENGINE NO. 43 OF THE TOWNSHIP OF IRVINGTON FIRE DEPARTMENT,*FN1 DEFENDANTS-APPELLANTS, AND EUGENIA PORRAS, PROSSER INDUSTRIES, INC., (DIVISION OF PUREX INDUSTRIES, INC.), DEFENDANTS.
CHANTEL PORRAS AND ROY PORRAS, PLAINTIFFS-APPELLANTS,
v.
TOWNSHIP OF IRVINGTON, TOWNSHIP OF IRVINGTON FIRE DEPARTMENT, OFFICERS AND CREW OF ENGINE NO. 43 OF THE TOWNSHIP OF IRVINGTON FIRE DEPARTMENT, DEFENDANTS-RESPONDENTS, AND EUGENIA PORRAS, PROSSER INDUSTRIES, INC., (DIVISION OF PUREX INDUSTRIES, INC.), DEFENDANTS.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6499-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 10, 2008

Before Judges S. L. Reisner, Gilroy and Baxter.

On August 5, 2001, plaintiff Chantel Porras suffered a severe electrical shock when she attempted to move an electrical water pump that had been left in the basement of her mother-inlaw's home by members of defendant Township of Irvington Fire Department. Following a jury trial, Chantel was awarded $5,000,000 against defendants, Township of Irvington, the Township of Irvington Fire Department, and unnamed officers and crew of Engine No. 43 (collectively, the "Township"). The jury returned a verdict of no cause of action against plaintiff Roy Porras on his per quod claim.*fn2 On August 24, 2006, a confirming order of judgment was entered.

On August 25, 2006, an order was entered, which denied the Township's motion for judgment notwithstanding the verdict (JNOV), but granted the Township's motion for a new trial on damages, conditioned on whether plaintiff agreed to accept a remittitur to $1,000,000. Following plaintiff's acceptance of the remittitur, an amended order for judgment was entered on September 28, 2006, in the amount of $1,000,000. The Township appeals from the denial of its motion for JNOV, or in the alternative, for a new trial. Plaintiff appeals from the grant of the remittitur.*fn3 We affirm the Township's appeal in A-0814-06T3; reverse on plaintiff's appeal in A-0855-06T3; and reinstate the jury verdict.

I.

On August 5, 2003, plaintiff filed a personal injury negligence/products liability complaint against the Township; Eugenia Porras, plaintiff's mother-in-law;*fn4 and ABC Corp., a fictitious name for the manufacturer of the water pump. On September 22, 2003, plaintiff filed an amended complaint, substituting Prosser Industries, Inc., as the true name of the manufacturer of the water pump. On September 24, 2004, summary judgment was granted to defendants Eugenia Porras and Prosser Industries, Inc.

On September 23, 2005, plaintiff filed a motion seeking partial summary judgment against the Township on the issue of liability. The motion was granted by order of October 21, 2005. On November 28, 2005, plaintiff served the Township with a Rova Farms*fn5 demand letter, and with an offer to take judgment pursuant to Rule 4:58-1(a) in the amount of $1,000,000.

On March 16, 2006, the Township filed a motion seeking partial summary judgment as to damages, contending that plaintiff was not able to prove that she had sustained a permanent or substantial loss of a bodily function as required by N.J.S.A. 59:9-2d. The motion was denied.

On June 26, 2006, the Township: 1) filed a motion in limine seeking to bar plaintiff's medical expert from testifying at trial, contending that plaintiff's expert failed to address the issues of causation and permanency in his reports; and 2) filed a motion seeking to dismiss the complaint for failure to state a cause of action upon which relief could be granted. The motions were denied on June 27, 2006.

On June 29, 2006, the trial commenced with the Township filing two additional motions: the first for leave to call one of plaintiff's medical experts, Malcolm Owens, a physician's assistant with the United States Army, as its witness at trial; the second for reconsideration of its motion seeking to dismiss the complaint for failure to state a cause of action. The motion for reconsideration was denied, and the motion to call plaintiff's medical expert as the Township's witness was granted.

On July 12, 2006, the jury returned a verdict of $5,000,000. On July 28, 2006, the Township filed a motion for JNOV, for a new trial or a remittitur. On August 25, 2006, the trial judge entered an order denying the motion for JNOV and for a new trial, but granted a remittitur of the jury verdict to $1,000,000. The order provided that plaintiff had twenty days to accept the remitted sum or the case would be retried on damages only. After plaintiff accepted the remitted amount, an amended order of judgment was entered on September 28, 2006, in the amount of $1,000,000.

II.

Plaintiff, born April 12, 1978, had participated in ROTC*fn6 while attending high school. After graduation in 1996, plaintiff attended college and participated in a co-op program for nursing with Elizabeth General Hospital. On November 20, 1996, plaintiff and Roy Porras were married. In 1997, plaintiff joined the United States Air Force and worked for three years as an information manager in the communications field, until she began cross-training in the medical field. In late 1999, plaintiff completed her medical training and became an Emergency Medical Technician, and subsequently a licensed vocational nurse.

On completion of her medical training, plaintiff was reassigned to the medical squadron at Goodfellow Air Force Base, Texas. As a medical technician, plaintiff was required to perform such duties as patient triage assessment, running intravenous lines, drawing blood, giving injections and immunizations, suturing lacerations, and assisting doctors with various medical procedures. Toward the end of 2000, plaintiff was assigned to work at Walson Air Force Hospital, McGuire Air Force Base.

On August 5, 2001, the night of the incident, plaintiff and Roy slept in the basement of her mother-in-law's home. In the middle of the night, plaintiff woke up to go to the bathroom, and stepped into ankle-deep water. Plaintiff contacted the Township of Irvington Fire Department to pump out the basement. Members of Engine No. 43 of the Irvington Fire Department arrived at the residence, and began pumping out the basement, utilizing an electric pump. According to plaintiff, "they set up the pump . . . with the intention that they were going to leave, and they told us they'll be back in a couple of hours or, for us to call them when it's done." "They told us it was safe to stay in the water and just continue pushing the water towards the pump."

Sometime after the fire department members left the home, the pump began making noise and emitting air. On noticing the problem with the pump, plaintiff attempted to move it to an area of the basement that still had an accumulation of water. When plaintiff grabbed the pump with her right hand, she received an electrical shock and could not release it from her grip until her mother-in-law took a broom and unplugged it, at which time plaintiff was thrown back onto the floor. After plaintiff fell, her body trembled. Roy immediately took plaintiff to Irvington General Hospital, which was across the street from the house. At the hospital, plaintiff continued to shake, primarily in the right arm and hand; she was examined, administered pain medication, kept under observation for a few hours, and then released.

On August 6, 2001, plaintiff was examined by Dr. Sven Klauss, her primary physician, who was the Chief Internal Medicine physician at McGuire AFB. Dr. Klauss determined that plaintiff suffered an electrical shock, documented his observation of her tremors, and found weakness in both upper extremities. Klauss prescribed pain medication and placed plaintiff on quarters, the military's equivalent of sick leave.

After a few days, plaintiff was placed on convalescent leave for about two weeks.

On August 7, 2005, plaintiff sought the medical services of Dr. Nazar Haidri, a neurologist who had previously treated plaintiff for migraine headaches. After conducting physical and neurological examinations, Haidri opined that plaintiff had an upper extremity tremor and weakness to her right hand and arm caused by the electrical shock. Haidri prescribed a combination of medications to help with the tremor and pain.

Plaintiff was next referred to Dr. Arun Kachroo, a neurologist, who primarily treated plaintiff's migraine headaches. Although plaintiff suffered from migraine headaches prior to the incident, the electrical trauma caused a significant exacerbation of her condition, which increased in frequency, duration, and intensity. Plaintiff's decreased physical abilities necessitated restrictions in her physical profile,*fn7 requiring the Air Force to place her on medical evaluation board status.

As of June 2006, plaintiff testified that she can no longer perform many of the physical functions of a nurse. Plaintiff is not able to administer IVs, take blood, or handle infants. Because plaintiff is no longer assigned a patient load, she is limited to doing admission paperwork, discharge paperwork, educating the patients' families, and watching medical monitors.

In addition to not being able to perform the physical duties of a nurse, plaintiff testified that she is unable to perform many of the everyday tasks that she had performed prior to receiving the electrical shock, such as vacuuming, opening jars, and being intimate with her husband. Plaintiff continues to take various prescribed medication for pain and tremor management, including Percocet, Inderal, Pamelor, Relpax, Mycelin, Klonopin, and uses the Lidocaine patch. Plaintiff has also received trigger point injections of pain medication and steroids.

Certain medications prescribed to plaintiff may cause side effects, including drowsiness, fatigue, and dizziness. Accordingly, plaintiff is not permitted to drive a car while taking them. Also, some of the medications have had other unintended side effects, which prohibit her from becoming pregnant and starting a family. Moreover, plaintiff has been instructed by her treating doctors to remain on birth control pills because the medications could cause the loss of a fetus, or cause severe birth defects. Plaintiff continues to suffer from pain on a daily basis, and the tremor makes it difficult for her to sleep, allowing her to sleep "about two to three hours . . . every night."

Plaintiff's military career has been adversely affected. Not only is plaintiff not medically cleared by the Air Force to participate in physical activities, such as the 1.5 mile timed run, the cycle ergometry assessment, push-up and sit-up assessments, but she is also not allowed to push or lift greater than ten pounds, which restrictions prevent her from performing most of her duties as a nurse. Furthermore, because of her inactivity, plaintiff remains medically boarded and has gained approximately thirty-eight pounds since August 5, 2001.

On appeal, the Township defendants argue:

POINT I.

THE TRIAL COURT ERRED IN DENYING THE TOWNSHIP AND FIRE DEPARTMENT'S REQUEST FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR IN THE ALTERNATIVE, A NEW TRIAL, BECAUSE THE PLAINTIFF FAILED TO MEET HER BURDEN TO DEMONSTRATE MEDICAL EXPENSES IN EXCESS OF $3,600.00 AND TO PRODUCE OBJECTIVE MEDICAL EVIDENCE OF A SUBSTANTIAL PERMANENT INJURY AS REQUIRED TO OVERCOME THE THRESHOLD OF THE TORT CLAIMS ACT.

A. PLAINTIFF FAILED TO PRESENT EVIDENCE PROVING THAT SHE INCURRED MEDICAL EXPENSES IN EXCESS OF $3,600.00.

B. PLAINTIFF FAILED TO PRODUCE OBJECTIVE MEDICAL EVIDENCE OF A SUBSTANTIAL PERMANENT INJURY.

POINT II.

PRIOR TO TRIAL, THE COURT ERRED WHEN THE JUDGE PERMITTED ONLY THE PLAINTIFF TO PRODUCE EXPERT REPORTS AFTER THE DISCOVERY END DATE, WHICH SUBSTANTIALLY PREJUDICED THE TOWNSHIP AND FIRE DEPARTMENT AT TRIAL.

POINT III.

THE PLAINTIFF FAILED TO SET FORTH A STATEMENT OF MATERIAL FACT IN THE COMPLAINT THAT WOULD SUSTAIN A CAUSE OF ACTION AGAINST THE TOWNSHIP AND FIRE DEPARTMENT; THEREFORE, THE COURT ERRED IN DENYING THEIR REQUEST FOR JUDGMENT NOTWITHSTANDING THE VERDICT.

POINT IV.

THE TRIAL COURT ERRED IN DENYING THE TOWNSHIP & FIRE DEPARTMENT'S REQUEST FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR IN THE ALTERNATIVE, A NEW TRIAL BECAUSE THE RULINGS RESULTED IN UNFAIR PREJUDICE TO THESE PARTIES.

On her appeal, plaintiff argues:

POINT I.

THE TRIAL COURT'S INTERFERENCE WITH THE JURY'S VERDICT ON DAMAGES HAS RESULTED IN A MISCARRIAGE OF JUSTICE AND, THEREFORE, THE JUDGMENT OF REMITTITUR SHOULD BE SET ASIDE AND THE JURY'S VERDICT REINSTATED.

A. THE TRIAL JUDGE IMPROPERLY DISREGARDED THE JURY'S AWARD OF DAMAGES BASED UPON HIS EMOTIONAL RESPONSE TO THE VERDICT.

B. THE TRIAL JUDGE'S DECISION THAT THE JURY'S AWARD OF DAMAGES WAS IMPROPERLY BASED UPON A COMPARISON OF BRACHIAL PLEXUS INJURY.

C. THE AWARD OF DAMAGES ON BEHALF OF CHANTEL PORRAS WAS WITHIN THE REASONABLE DISCRETION OF THE JURY AND THERE WAS NO BASIS FOR DISTURBING THE[] VERDICT.

D. IN REMITTING THE JURY VERDICT THE TRIAL JUDGE FAILED TO SET FORTH HIS VIEWS OR OBSERVATIONS REGARDING THE SO-CALLED "FEEL OF THE CASE."

POINT II.

THE TRIAL COURT'S REMITTITUR DETERMINATION PROHIBITED PLAINTIFFS FROM PURSUING THEIR BAD FAITH CLAIM AS ESTABLISHED IN ROVA FARMS RESORT V. INVESTORS INS. CO., 65 [N.J.] 474.

III.

The Township argues in Part I that the trial court erred in denying its motion for JNOV, or in the alternative, for a new trial, because plaintiff failed to meet the threshold for pain and suffering damages as required by N.J.S.A. 59:9-2d. We disagree.

The New Jersey Tort Claims Act (the Act), N.J.S.A. 59:1-1 to 12-3, limits recovery for pain and suffering damages to cases involving "permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600." N.J.S.A. 59:9-2d. The Township argues that plaintiff failed to prove both criteria under the statute.

The Township argues that "[p]laintiff failed to submit sufficient medical evidence of a permanent injury that is substantial," contending that plaintiff's tremor "does not in and of itself constitute a substantial loss of a bodily function." The Township asserts that Dr. Haidri's opinion was a net opinion because it failed to establish that plaintiff's carpal tunnel syndrome was caused by the electrical shock, and that the opinion was based on plaintiff's medical history regarding the electrical shock. We disagree.

Motions for judgment, whether made under Rule 4:37-2(b) at the close of the plaintiff's case, under Rule 4:40-1 at the close of evidence, or under Rule 4:40-2(b) after the verdict, are "governed by the same evidential standard: [I]f, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied . . . ." Verdicchio v. Ricca, 179 N.J. 1, 30 (2004) (citations omitted). This is the same standard which applies to trial courts, Frugis v. Bracigliano, 177 N.J. 250, 269 (2003), and which governs a motion for summary judgment. Schneider v. Simonini, 163 N.J. 336, 360 (2000); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).

For a plaintiff "to vault the pain and suffering threshold under the Tort Claims Act, [the] plaintiff must satisfy a two-pronged standard by proving (1) an objective permanent injury, and (2) a permanent loss of a bodily function that is substantial." Gilhooley v. County of Union, 164 N.J. 533, 540-41 (2000). "Temporary injuries, no matter how painful and debilitating, are not recoverable." Brooks v. Odom, 150 N.J. 395, 403 (1997). Nor may a plaintiff "recover under the Tort Claims Act for mere 'subjective feelings or discomfort.'" Ibid. (quoting Ayers v. Twp. of Jackson, 106 N.J. 557, 571 (1987)). As to the second prong, "[t]he determination of whether a plaintiff's injury satisfies the 'permanent loss of a bodily function that is substantial' threshold under the [Act] depends on a fact-sensitive analysis." Knowles v. Mantua Twp. Soccer Ass'n., 176 N.J. 324, 331 (2003) (quoting Gilhooley, supra, 164 N.J. at 541). In determining the second prong, the focus of the factfinder is on the degree of injury and the impairment suffered by the plaintiff. Accordingly, "there is no per se rule that would preclude finding a permanent and substantial loss of a bodily function merely because a claimant still is able to function reasonably well at work and at home, irrespective of the nature or degree of the impairment." Ponte v. Overeem, 171 N.J. 46, 53 (2002).

The court in Brooks "identified a number of injuries that, if supported by medical proof, obviously meet both prongs of the standard: injuries causing blindness, disabling tremors, paralysis[,] and loss of taste and smell." Gilhooley, supra, 164 N.J. at 541 (citing Brooks, supra, 150 N.J. at 403) (emphasis added). "Indeed such injuries, by their very nature, are objectively permanent and implicate the substantial loss of a bodily function (e.g., sight, smell, taste, and muscle control)." Ibid. (emphasis added).

The Township argues that plaintiff did not prove that she suffers from a tremor of her right upper extremity by objective medical evidence; and in the alternative, that even if she had, plaintiff failed to submit objective medical evidence that the injury was substantial, that is, that it constituted a substantial loss of a bodily function. We disagree. As the Court noted in Brooks, disabling tremors, if supported by medical proof, meet both prongs of the Brooks and Gilhooley standard.

Here, plaintiff commenced suffering a tremor of the right upper extremity immediately upon receipt of the electrical shock on August 5, 2001. The tremor was noted during the emergency room treatment at Irvington General Hospital on the morning of the event, and it continued for five years through the date of trial.

One of plaintiff's treating neurologists, Dr. Haidri, who had previously treated plaintiff for migraine headaches in the early 1990's, examined plaintiff on August 7, 2001. After considering plaintiff's medical history concerning the electrical shock, Haidri completed plaintiff's examination and diagnosed her as suffering from an "arresting course tremor. I mean course, means quite large, tremor of the right hand." "So my impression at that point was that she had sustained an electrical injury to the right arm and right hand. She had traumatic neuropathy of the right arm and right hand and she had tremor of the right arm and hand." When questioned whether he had reached his diagnosis through use of a diagnostic test, the doctor answered in the negative because there are no known diagnostic tests for determining tremors; rather the tremor itself is an objective finding of its existence. "[T]he tremor is something you can see and it was seen by me, by various doctors and she still has the tremor. You can see her sitting there [in court] shaking her right hand."

Dr. Haidri treated plaintiff approximately fourteen additional times through December 5, 2002, when plaintiff was transferred to San Antonio, Texas. During those visits, the doctor found that plaintiff "continued to suffer a tremor of the upper right extremity." On plaintiff's return from Texas, the doctor examined her on December 20, 2004, and again on December 21, 2005, and observed the tremor during both examinations. In addition, in 2001, Dr. Haidri referred plaintiff to Dr. Arthur Walters, a Movement Disorder Specialist at JFK Hospital, and to Doctor Nadeem Ahsan, an anesthesiologist. Both doctors diagnosed plaintiff as suffering from post-electric shock movement disorder. Based on his examination, Dr. Haidri opined that plaintiff suffered "a substantial loss of the upper right extremit[y]" because she is right handed and from the first day of the accident she had trouble eating with the right hand, needed help from her husband in dressing and undressing, and could not perform many activities she had performed before the accident, such as gripping objects or typing. In addition to the tremor, Dr. Haidri opined that plaintiff not only suffered right carpal tunnel syndrome caused by the electrical shock, but also exacerbated her migraine condition, which plaintiff later testified had significantly increased in frequency, duration and intensity.

Plaintiff testified that the tremor and migraine headaches have affected all aspects of her life. She is not able to perform the physical duties of a nurse, as the Air Force has determined her unqualified for worldwide active duty and had restricted her duties to doing such things as admission paperwork, discharge paperwork, educating the patient's family, and watching medical monitors. As a result of the Air Force's determination, plaintiff no longer has a patient load, or is permitted to lift infant children.

Plaintiff has not passed her medical assessments with the Air Force for the past four years and is presently medically boarded, awaiting a decision from the Surgeon General whether she will be able to continue active military duty in the Air Force. Moreover, because of plaintiff's need of medication to control the pain, tremor, and headaches, she cannot remove herself from birth control medication because of the possibility of becoming pregnant with a child with severe birth defects. We are satisfied that the evidence supported the jury's determination that plaintiff suffered an objective permanent injury and a permanent loss of a bodily function that is substantial. Id. at 540-41.

The Township also argued in its motion for JNOV that plaintiff had failed to present evidence that she had incurred medical treatment expenses in excess of $3,600 as required by N.J.S.A. 59:9-2d. Plaintiff counters that the trial judge correctly denied the Township's motion on this basis because it did not raise the issue on a motion for involuntary dismissal at the end of plaintiff's case, or on motion for judgment at the end of the case. Stated simply, plaintiff asserts that it was too late to raise the issue for the first time on motion JNOV. We agree.

The Township filed a motion for JNOV, pursuant to Rule 4:40-2(b), which provides in pertinent part: "[i]f a motion for judgment is denied and the case submitted to the jury, the motion may be renewed in accordance with the procedure prescribed by R. 4:49-1 (new trial) within 20 days after the verdict or the jury's discharge." A prerequisite to the grant of a motion JNOV is the moving party's filing of a motion during trial on the same basis which, "if granted would have afforded the moving party the same relief he seeks by way of the judgment [JNOV]." Pressler, Current N.J. Court Rules, comment 3 on R. 4:40-2 (2008). Here, the Township never filed a motion during trial that sought to dismiss plaintiff's complaint for failure to present medical expenses in excess of $3,600. Accordingly, the trial judge properly denied the motion on that basis.*fn8

The Township also asserts in Point I that Dr. Haidri's opinion, that plaintiff suffered right carpal tunnel syndrome, was a net opinion, not only because the doctor based his opinion on plaintiff's medical history regarding the electrical shock on August 5, 2001, but also because the doctor had failed to establish that the injury was caused by the electrical shock.

The admission of expert evidence is governed by the New Jersey Rules of Evidence. See N.J.R.E. 702-705. Pursuant to N.J.R.E. 703, an expert's opinion must be based on "facts, data, or another expert's opinion, either perceived by or made known to the expert, at or before trial." Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002). Furthermore, the facts or data relied on by the expert need not be admissible, so long as of a type reasonably relied on by experts in the field. N.J.R.E. 703.

The rule is that the bare conclusions of an expert, which are unsupported by factual evidence, i.e., a "net opinion," are inadmissible. Myrlak v. Port Auth. of N.Y. & N.J., 302 N.J. Super. 1, 8 (1997), rev'd on other grounds, 157 N.J. 84 (1999). An expert must give the "'why and wherefore'" supporting his or her opinion, "'not just a mere conclusion.'" Ibid. (quoting Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996)). Expert testimony which does not relate to generally-accepted standards, but instead references a standard that is personal to the expert, is the same as a net opinion. Taylor v. DeLosso, 319 N.J. Super. 174, 180 (App. Div. 1999). However, so long as the opinion relates to generally-accepted standards, includes the "why and wherefore," and is not simply a baseless conclusion, the opinion is not net. Jimenez, supra, 286 N.J. Super. at 540.

On August 7, 2001, plaintiff underwent an electromyogram (EMG) of the right arm at Dr. Haidri's office. Although the exam could not be completed because plaintiff could not tolerate it "due to her tremor," the doctor testified that it did show carpal tunnel syndrome of the right side, which he causally related to the electrical shock. "[W]hen you get an electric shock, the current travels through the body and the - - some tissues can be affected such as muscles, blood vessels, nerves."

"Whatever [has] increased water content, the electricity passes more easily and, so, in her case the medial nerve of the wrist was affected and that - - and I explain what carpal tunnel syndrome is." We are satisfied that doctor's opinion that plaintiff suffers from right carpal tunnel syndrome was not a net opinion.

IV.

The Township argues next that the trial court erred in denying its motions to extend the discovery period and to serve a late medical expert report. The Township contends that plaintiff did not serve any expert reports during the discovery period, and that the court permitted plaintiff to serve her medical expert report after the close of the discovery period. The Township asserts that "although the court was extremely lenient in applying the Rules of Court to plaintiff[], the judge applied the strictest possible applications of the very same Rules of Court to the Township and barred the Township from introducing an expert report after the end of the discovery period." These contentions are not supported by the record.

Plaintiff filed her complaint on August 5, 2003, and her amended complaint on September 22, 2003. The Township filed its answer on October 21, 2003. On November 12, 2003, the Township served plaintiff with discovery demands, including a demand for answers to uniform interrogatories. On April 10, 2004, plaintiff served her answers to interrogatories on the Township under plaintiff's counsel's cover letter, which stated in pertinent part: "[o]ur liability expert cannot complete his report until we receive additional information from the City of Irvington concerning the maintenance and repair of the pump." The answers to interrogatories set forth the names and addresses of plaintiff's treating and examining physicians, together with the dates of treatments and examinations. Although plaintiff's response to Interrogatory No. 7 concerning expert reports stated that medical reports and bills would be supplied upon receipt, plaintiff's counsel certified during the action that he had attached true copies of all written reports from plaintiff's medical providers, including Dr. Haidri.

On September 15, 2004, plaintiff served a copy of her liability expert report dated September 9, 2004, on all parties, wherein the expert refers to his review of the reports of various physicians, including Dr. Haidri. On November 17, 2004, plaintiff filed a motion to extend discovery, not only for the purpose of having plaintiff reexamined by Dr. Haidri, but also for defendant to arrange for a medical examination of plaintiff, who was then residing in Texas.

On December 3, 2004, the trial court entered an order extending discovery through February 28, 2005, which provided in pertinent part that the Township's medical examination of plaintiff was to be completed by December 31, 2004, and that there was to be no further extension of the discovery end date. Contrary to the provisions of the order, the Township did not seek to have plaintiff examined. On June 3, 2005, the matter proceeded to non-binding arbitration with plaintiff referencing the narrative report of Dr. Haidri in her arbitration statement.

On July 15, 2005, the Township filed a motion seeking to dismiss plaintiff's complaint with prejudice for failure to comply with discovery requests, contending that the Township had only received plaintiff's liability expert report at the arbitration proceeding. On August 19, 2005, the motion was denied as untimely because the discovery period had ended on February 28, 2005, and because the Township had not previously sought to compel discovery nor moved to dismiss the complaint without prejudice pursuant to Rule 4:23-5(a).

On December 2, 2005, ten months after the passage of the discovery end date, six months after the case was arbitrated, six weeks after the court granted plaintiff's motion for partial summary judgment on liability, and less than two weeks before the second scheduled and agreed-upon trial date of December 19, 2005, the Township filed a motion seeking to extend the discovery end date. The Township contended that plaintiff had not provided responses to the Township's discovery demand, including medical reports, and that the Township needed a defense medical examination. Plaintiff opposed the motion, asserting that there were no exceptional circumstances to justify an extension of the discovery end date. Because the motion was not returnable until January 6, 2006, two weeks after the agreed-upon scheduled trial date, the parties were directed to report for trial on December 19, 2005.

On December 15, 2005, the Township filed a motion seeking to bar plaintiff's medical expert from testifying at trial, not because the Township had not received Dr. Haidri's report, but rather because the report received did not proffer an opinion "within a reasonable degree of medical probability as to diagnosis, causation and prognosis." The Township also sought an order precluding plaintiff from presenting evidence regarding lost wages and loss of career opportunities in the Air Force, because plaintiff had not provided any proof of those claims during the discovery period. Plaintiff opposed on the grounds that: 1) plaintiff had provided a copy of Dr. Haidri's report with her original answers to interrogatories; 2) the trial court had entered an order on December 3, 2004, extending discovery to provide the Township an opportunity to have plaintiff examined by December 31, 2004; and 3) the Township never sought to have plaintiff examined.

On December 20, 2005, the motion to extend discovery was denied, and the parties were directed to proceed to trial that day. However, because it was the Tuesday before the commencement of the Christmas recess and jurors were unavailable, the trial was adjourned. In denying the motion to extend discovery, the trial court determined that the Township had not established exceptional circumstances, primarily because plaintiff had agreed to submit to a medical examination in 2004. However, because defense counsel had stated that he had not received a copy of Dr. Haidri's report, the court directed plaintiff's counsel to provide an additional copy of the report to defendant that day.

On January 19, 2006, the Township served plaintiff's counsel with a copy of a defense medical report from Dr. Arthur C. Rothman, which had been prepared from a review of plaintiff's medical records, including reports from her treating and examining physicians. On February 13, 2006, the Township filed a second motion seeking to extend the discovery end date to name Dr. Rothman as a proposed expert. On March 3, 2006, the court denied the motion, determining that the Township had not established exceptional circumstances. The trial court determined that the Township's motion was untimely, because arbitration had been completed in June 2005, the parties had conducted settlement conferences, and prior trial dates had been fixed and adjourned. The trial court also denied the Township's in limine motion seeking to not only preclude plaintiff's medical expert from testifying at trial, but also preclude plaintiff from introducing evidence of lost wages and career opportunities.

A trial court's decision on whether to grant or deny a motion for extension of discovery under Rule 4:24-1(c) is committed to the sound discretion of the trial court. Huszar v. Greate Bay Hotel & Casino, Inc., 375 N.J. Super. 463, 471-72 (App. Div.), rev'd on other grounds, 185 N.J. 290 (2005). Accordingly, the appellate standard of review of a trial court's denial of a motion for an extension of a discovery is whether the trial court's decision constituted an abuse of discretion. Bender v. Adelson, 187 N.J. 411, 428 (2006).

Rule 4:24-1(c) governs applications to extend the discovery end date. Parties may obtain one extension of the discovery end date during the action by consent, provided that the extension is sought prior to the expiration of the discovery period. R. 4:24-1(c). After the initial extension, applications for an extension of the discovery end date shall be by motion on a showing of good cause. Ibid. However, once an arbitration or trial date is fixed, "no extension of the discovery period may be permitted," absent a showing of "exceptional circumstances." Ibid. Exceptional circumstances require a showing "in a detailed certification to the court, making clear that the reasons were beyond the reasonable control of the party seeking relief. Mere failure to prepare a file during discovery is not a reason to reopen discovery or to adjourn a trial." O'Donnell v. Ahmed, 363 N.J. Super. 44, 52 (Law Div. 2003) (cited with approval in Szalontai v. Yazbo's Sports Café, 183 N.J. 386, 397 (2005)).

Generally, in considering an application for an extension of the discovery period to serve a late expert report after an arbitration or trial date has been fixed, the proponent of the motion must satisfy a four prong test:

(1) [explain] why discovery has not been completed within time and counsel's diligence in pursuing discovery during that time; (2) [explain why] the additional discovery or disclosure sought is essential; (3) [explain] counsel's failure to request an extension of the time for discovery within the original time period [or previously extended discovery time period]; and (4) [show] the circumstances presented were clearly beyond the control of the attorney and litigant seeking the extension of time.

[Rivers v. LSC P'ship, 378 N.J. Super. 68, 79 (App. Div. 2005).]

Moreover, "'[a]ny attorney requesting additional time for discovery should establish that he or she did make effective use of the time permitted under the rules. A failure to pursue discovery promptly, within the time permitted, would normally be fatal to such a request.'" Ibid. (quoting Vitti v. Brown, 359 N.J. Super. 40, 51 (Law Div. 2003)).

Here, following a sixty-day extension of the discovery end date by consent of the parties, the trial court entered an order on December 3, 2004, extending the discovery end date to February 28, 2005, and directed the Township to arrange for examination of plaintiff by December 31, 2004. On June 3, 2005, after the close of the discovery period, the parties arbitrated the matter without the Township seeking an extension of the discovery period. Following the filing of a demand for trial de novo, a trial date was fixed in the fall of 2005 and adjourned to an agreed-upon date of December 19, 2005. It was only after the second trial date was fixed that the Township filed a motion on December 2, 2005, seeking to extend the discovery end date, asserting that it had not sought an examination of plaintiff because it had not received plaintiff's medical expert report. The trial court denied that motion and the Township's second motion eight weeks later, determining that the Township had not shown exceptional circumstances because it could have moved to compel the production of any expert reports it believed had not been timely served by plaintiff. Even assuming plaintiff had failed to timely serve Dr. Haidri's report, a fact we do not find supported by the record, we agree.

Rule 4:17-4(e) provides that when a party fails to provide an expert report that "the propounder [of the interrogatories] may . . . move for an order . . . fixing a day certain for the furnishing of that information by the answering party. Such order may further provide that an expert or treating physician whose . . . report is not so furnished shall not be permitted to testify at trial." The design of the rule is to eliminate or reduce any adverse affect on adversaries and the trial court by the late serving of expert reports immediately before trial. See Bender, supra, 187 N.J. at 427. Moreover, the purpose of the rule "is to permit the propounder of the unanswered interrogatory asking for an expert's . . . report to move for the fixing of a day certain by which the information must be supplied. The onus is therefore placed essentially on the propounder to ensure his early obtaining of the information." Pressler, Current N.J. Court Rules, comment 5.1 on R. 4:17-4 (2008).

Because the Township did not pursue the remedy available under Rule 4:17-4(e), but rather proceeded through arbitration and the fixing of the trial date, we determine that the trial court did not abuse its discretion in denying the motion to extend the discovery end date. See Szalontai, supra, 183 N.J. at 397 (upholding the trial court's decision denying plaintiff leave to extend the discovery deadline and barring his late liability expert from testifying at trial). See also, Bender, supra, 187 N.J. at 427-31 (upholding the trial court's decision to bar defendant's request for an extension of the discovery period and submission of late liability expert reports).

We have considered the Township's remaining arguments and determine that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

V.

We now address plaintiff's appeal. Plaintiff argues that the trial judge erred in granting a remittitur of the jury verdict from $5,000,000 to $1,000,000. Plaintiff contends that the trial judge improperly compared her injuries to those of an infant plaintiff who suffered a brachial plexus injury. Plaintiff requests that this court vacate the judgment of remittitur and reinstate the jury's verdict.

The standards of review of a trial court in ruling on a motion for a new trial, or in the alternative, for a remittitur, and of the appellate court in reviewing the trial court's decision on the motion, were recently addressed by our Supreme Court in Johnson v. Scaccetti, 192 N.J. 256, 280-82 (2007):

The use of remittitur is encouraged whenever possible to avoid the unnecessary expense and delay of a new trial. Accordingly, when a defendant moves for a new trial, successfully claiming that a jury awarded excessive damages, the trial court has the option of denying the motion on the condition that the plaintiff consent to the reduction of the award to a specified amount. In the absence of consent, a new damages trial is ordered.

Because a jury is given wide latitude in determining pain and suffering damages, the standard for granting a new trial or remittitur is necessarily high. The judge may not substitute his judgment for that of the jury merely because he would have reached the opposite conclusion; he is not a thirteenth and decisive juror. A trial court should not order a new trial or remit a jury's damages award unless it is so clearly disproportionate to the injury and its sequela (here plaintiff's pain and suffering and loss of enjoyment of life) that it may be said to shock the judicial conscience. The verdict must be wide of the mark and pervaded by a sense of wrongness. In other words, the trial court must be clearly and convincingly persuaded that it would be manifestly unjust to sustain the award.

In deciding whether to grant a remittitur, the court must accept the evidence in the light most favorable to the plaintiff, and must articulate its reasons for reducing a damages award by reference to the trial record. Although the court may rely on its knowledge of other injury verdicts, if it does so, it must give a factual analysis of how the award is different or similar to others to which it is compared.

On appeal, the standard of review for determining the excessiveness of a damages award is the same standard applicable to the trial court, with one significant exception.

An appellate court must pay deference to the trial court's feel of the case, given that, on appeal, review is confined to the cold record. However, [t]he feel of the case factor, while entitled to deference, is the only element distinguishing the standard governing appellate review from that controlling trial court reaction to a jury verdict. [(internal citations and quotations omitted).]

Here, the trial judge, in ruling on the motion for a new trial, or in the alternative, for a remittitur stated:

I have sat in the Law Division hearing civil trials for about seven years . . . so I do think I have some experiences in the area of personal injury litigation . . . .

During my time as a trial judge, I have handled some cases . . . dealing with brachial plexus injuries to infants at birth[;] [w]here an infant does lose . . . a substantial, if not most, of the use of an upper extremity. So I think I do have some type of feel for the value of those type cases.

I will state very honestly that my overall experiences, I was quite astounded by the amount of the verdict in this case, so that it definitely was one that I personally would consider to be a shocker. And I can compare to some degree the type of injury that Ms. Porras sustained to - the closest thing I can find to it are some of the types of injuries that have been sustained in brachial plexus injury cases.

I will state that her injury was quite eviden[t] to even myself, although I'm not a doctor. Virtually anytime I was able to observe her hand, there was a noticeable tremor, and . . . it was . . . of a sufficient duration that a person, I don't think, could have just faked that type of tremor. It would have been just too uncomfortable to do it for that substantial period of time.

That being said, although based on the testimony which I have to accept, there were many everyday things that she had difficult[y] doing, which she had done before . . . there was nothing to dispute her own testimony that she would have had some difficulty, or couldn't perform all of her nursing-type functions in the Air Force.

It wasn't the type of case where she had the type of really devastating type of loss of use of the extremity that can be seen in a lot of the brachial plexus cases. And they certainly, as a general rule, do not go for anything like the -- with much more severe type of injuries, and a really more effect on a person.

Here we're dealing with about a . . . [26]-year-old woman. Where in [brachial plexus] cases you're dealing with an infant who was - really had a severe handicap since childhood, really negating a large part of the very enjoyment that most of us have in our childhood years and activities that a normal child would have. So that I think the overall lifetime effect is far more devastating on the loss of enjoyment of life disability and the like. Pain and suffering and those - that overall category.

One of the perhaps now leading cases on excessive damages overall and the whole question of remittitur is Fertile [v.] St. Michael's [Med. Ctr., 169 N.J. 481 (2001).] In that case the Supreme Court sustained a remittitur down to $5 million of a brachial plexus injury to a newborn child[], which was far more devastating than what occurred in this case, to somebody much younger. Because there the young lady had virtually no use of the upper extremity, save to be able to perhaps place an object in the hands to more or less stabilize the object. But beyond that there was virtually no other use.

I could also state that I had a case about a . . . year ago . . . [where] there was a far more severe injury to a newborn with . . . almost total loss of use of an arm. And that was disposed of for something under $2 million.

So I think I do have some basis for at least a comparison through my own experiences and my own, more or less, gut feelings.

With all [this] in mind, I am going to essentially deny the motion for a new trial, but I am going to remit the amount of the judgment to $1 million. I will give the plaintiff 20 days to accept the remitted figure, otherwise a new trial will be ordered on the issue of damages.

After carefully examining the record, we conclude that the trial judge improperly interfered with the jury's verdict. As described in Part III of this opinion, the record supports the jury's determination that plaintiff suffered a severe, permanent loss of a bodily function, that is, she suffers from a constant tremor of her upper right extremity, which is noticeable from a distance. Because plaintiff is right-hand dominant and the tremor continues throughout each day, the injury affects all aspects of plaintiff's life. The tremor, together with its associated pain, affects her ability to sleep and care for herself, and her relationship with her husband. The injury affects her career in the United States Air Force, to where she has been ordered not to perform normal functions of an active-duty nurse or an emergency technician, but rather has been restricted to performing paperwork and watching medical monitors, and is now awaiting a decision from the Surgeon General concerning her future military active duty status.

In addition, plaintiff's pre-existing migraine headaches have increased in frequency, duration, and intensity, and she also suffers from right carpal tunnel syndrome. Moreover, because of possible adverse effects of the various medications that she is required to take to control the tremor, and reduce the pain and discomfort of the tremor and the migraine headaches, she has been instructed by her physicians not to become pregnant for fear of injury to the fetus. Plaintiff was twenty-six years of age at time of trial, and had a life expectancy of forty-eight years. The injury continued from when she received the electrical shock to the time of trial. The jury could have reasonably inferred that the tremor and the increase in the frequency and duration of the migraine headaches were permanent, and would last for the remainder of her life.

Against these facts, we discern that the trial judge should not have interfered with plaintiff's "constitutional right to have a jury decide the merits and worth of her case." Johnson, supra, 192 N.J. at 279. The judge determined that the verdict was excessive by comparing it to infant brachial plexus injury cases, without stating the exact nature of the residual injuries suffered by the children in those other cases, besides what may be gleaned from the reported decision in Fertile, supra. The comparison to brachial plexus injuries is especially problematic in light of the likelihood that plaintiff will be forced to forego having children because of the teratogenic effects of the needed pain medication. The loss of her ability to become a parent is significant; that loss is not shared by those with brachial plexus injuries.

Although we too may not have awarded the same amount of the verdict as the jury did if we were sitting on the jury, that is not the standard for overthrowing a jury verdict and granting a remittitur. Neither we nor the trial judge should act as the thirteenth juror. The verdict must be so excessive as to "clearly and convincingly appear[] that there was a miscarriage of justice under the law." R. 4:49-1. Although we defer to the trial judge's "feel of the case," we are satisfied that his interference with the jury verdict constituted a "miscarriage of justice under the law." R. 2:10-1. Accordingly, we reverse the grant of the remittitur, and reinstate the jury verdict to $5,000,000.

We affirm the Township's appeal in A-0814-06T3; reverse on plaintiff's appeal in A-0855-06T3; and remand the matter to the trial court to enter an amended order of judgment in accordance with this opinion.


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