On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6499-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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.
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.
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:
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.
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 ...