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Ribeiro v. Sintra

July 10, 2008


On appeal from the Superior Court of New Jersey, Law Division, Union County, L-3166-05.

Per curiam.


Submitted June 10, 2008

Before Judges Lintner and Parrillo.

Plaintiffs, Julio Ribeiro and his wife, Idelina,*fn1 filed a complaint against defendants Sintra General Construction, Inc., Sullivan Group, Inc., and J & J Carpentry and General Construction Corp. for injuries Julio sustained when he fell through an opening in the floor to the basement below, in a house under construction, located next to his home. Following trial, a jury found plaintiff 45% negligent and defendants 55% negligent and awarded plaintiff $10,000 for pain and suffering. The verdict was molded by the judge to $5755.05 based upon the liability verdict. Plaintiff moved unsuccessfully for a new trial or, in the alternative, additur. He now appeals. We reverse and remand for a new trial on the issue of damages.

We need not repeat the facts in detail.*fn2 The accident occurred on September 8, 2004, at approximately 7:30 p.m. Plaintiff arrived home and was exiting his car when he heard what he believed to be "a cat screaming" from inside the house next door. In the dark, without a flashlight, he entered the house, which did not yet have a front door or walls. After taking about five steps, he fell through an opening to the basement below. Plaintiff sustained a fracture to his left femur near the hip. He had previously fractured the lower part of the same femur in 1974 when he was 19 years of age.

On September 9, 2004, plaintiff underwent surgery at University Hospital in Newark where he had been taken by ambulance the evening of the accident. The surgery consisted of an open reduction and internal fixation of the left femur fracture. It required the surgeon to cut out and remove a portion of the old plate and some of the old screws that had been used to affix the 1974 fracture. A new plate was inserted. Plaintiff was discharged from the hospital on September 16, 2004. Plaintiff returned to the hospital on October 29, 2004, for another surgery to insert a second plate at the fracture site because the plate had snapped as a result of being placed at a stress point on the bone.

Plaintiff experienced "a lot of pain" during the year following the accident. Plaintiff complains of constant pain, and scarring of the leg. Prior to the accident, plaintiff worked as a mechanic at a body shop he owned. After the accident, he had to hire a person to perform the mechanic work because he was unable to do it. He opened a deli business but closed it one year later because he felt tired. At the time of the trial in July 2007, he had not sought medical treatment for two years.

Dr. Gregory Charko, an orthopedic surgeon, testified for plaintiff. Charko, testified that when plaintiff was examined by him in January 2007, plaintiff rated his hip pain, on a scale of zero-to-ten as a six, at best, and at its worst, a ten. Charko noted that plaintiff also complained of knee pain and could not walk long distances. Plaintiff was left with a twelve-inch surgical scar, had limited hip movement, and suffered from a limp. According to Charko, plaintiff had permanent weakness and residual pain in his left leg and it was unlikely that his pain or movement would get any better in the future. Charko opined that plaintiff had a "higher likelihood" of developing arthritis in his left hip and there was a "good probability" that he suffered cartilage damage in his knee as a result of the fall.

Dr. Michael Bercik, an orthopedic surgeon, examined plaintiff and testified on behalf of the defense. He saw no evidence of arthritis in the knee and believed that plaintiff suffered from a left hip fracture that resulted in "mild to moderate . . . permanent physical impairment." He also believed that plaintiff "would have some symptoms of discomfort from time to time with changes in the weather and strenuous activity," was limited in his ability to lift and carry heavy objects, and would "have a hard time" engaging in recreational activities. Dr. Bercik further noted that plaintiff suffered "a mild to moderate degree of permanent physical impairment from the [1974] injury." He believed plaintiff would be able to continue working as a mechanic, though plaintiff might not be able to perform some work-related activities, such as heavy lifting.

Although plaintiff's medical bills totaled $178,914.27,*fn3 his health insurance company paid, and the providers apparently accepted, a total of $25,420.37. At a July 23, 2007, hearing on pretrial motions, defendant sought to limit the amount of medical bills that the jury would hear, subject to subsequent molding of the verdict, to the amount paid by the health insurance company. Plaintiff argued that the full amount billed should be revealed to the jury.

On July 26, before commencement of trial, rather than allow the jury to hear either the amount of the medical bills charged or those actually incurred, the judge determined that the introduction of the medical bills would serve no purpose. She excluded, under N.J.R.E. 403, the medical payments and bills, finding that they did not have sufficient probative value and evidence of them would have "a very significant risk of [undue] prejudice, confusion of issues and misleading the jury."

On appeal, plaintiff contends that he is entitled to a new trial on damages because (1) the judge erred in excluding evidence of the medical bills and (2) the award of $10,000 was manifestly unjust. Defendants respond that there was no error, notwithstanding their original position that the jury should be advised of ...

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