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Kaminski v. Mayer

December 15, 2008

JENNIFER A. KAMINSKI, INDIVIDUALLY AND AS GUARDIAN AD LITEM FOR ZACHARY SHEEHAN AND THEODORE SHEEHAN, PLAINTIFF-RESPONDENT,
v.
VIRGINIA S. MAYER, DEFENDANT-APPELLANT.
JENNIFER A. KAMINSKI, INDIVIDUALLY AND AS GUARDIAN AD LITEM FOR ZACHARY SHEEHAN AND THEODORE SHEEHAN, PLAINTIFF-RESPONDENT,
v.
VIRGINIA S. MAYER, AND ESTATE OF VIRGINIA S. MAYER, DEFENDANTS-RESPONDENTS, AND FIRST TRENTON INDEMNITY COMPANY DEFENDANT/INTERVENOR-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3404-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 17, 2008

Before Judges Parrillo, Lihotz and Messano.

These are back-to-back appeals, which we have consolidated for purposes of this opinion, that arise from an underlying automobile negligence action. Defendant, Estate of Virginia S. Mayer (Estate), appeals from entry of judgment after a jury verdict finding decedent Virginia S. Mayer (Mayer) completely liable and awarding plaintiff, Jennifer A. Kaminski,*fn1 $2,320,000 in damages for injuries suffered as a result of Mayer's negligence and from the order denying defendant's motion for a new trial, or, in the alternative, remittitur. Defendant intervenor, First Trenton Indemnity Company (First Trenton), appeals from the Law Division's post-judgment order amending the order of judgment to substitute the Estate as the proper party defendant, Mayer having passed away four months prior to trial and the proper substitution not having been timely made. We affirm in all respects.

On Saturday, November 22, 2003, at around twelve o'clock noon, plaintiff was leaving an elementary school craft fair with her two young sons and was preparing to enter her car, which was legally parked within the marked fog lane of northbound Route 71 in Sea Girt. The children entered the car from the sidewalk, and plaintiff walked around to enter the driver's door. As she was about six inches from her car, within the fog line, facing the driver's door and about to unlock it, plaintiff was struck by a vehicle driven by Mayer, and fell onto the shoulder of the road. According to plaintiff, she never stepped into the road.

The responding police officer observed that driving conditions that day were clear, and that in the area of the accident, Route 71 is a straight level roadway with no visual obstructions for over one hundred feet back. The width of Route 71 northbound is eleven feet, seven inches from the center line to the fog line; and the width of Mayer's car was seventy inches, or five feet, ten inches.

At the time of the accident, Mayer was eighty years old and ill with cancer. She passed away prior to trial but had been deposed earlier. According to Mayer, when she approached Sea Girt there was a fair going on and a lot of people around, then "all of a sudden, Ms. Kaminski was in front of [her], [and] that was it." She could not recall specifics, like what plaintiff's car looked like, but thought plaintiff was partially in the road next to her car and in front of Mayer's car. While she initially stated that plaintiff must have been standing partially across the fog line, Mayer acknowledged not seeing plaintiff until immediately on, or within half a second of, impact. In response to questioning about her position on the roadway, Mayer answered, "I certainly wouldn't have been driving totally on the shoulder."

Mayer's version was disputed by Claire Watters, who was present at the scene of the accident. Her car was parked behind plaintiff's car at the time, and Watters was standing next to her vehicle when the accident occurred. When she looked at Route 71 northbound to ensure it was safe to enter her car, three cars were traveling towards her and, "[w]hat struck [her], what caught [her] attention was the car in the center was markedly more to the right and out of alignment with the other two cars." As Mayer's misaligned vehicle approached, it veered closer to the parked cars, so that Watters waited to enter her own, which was larger than plaintiff's vehicle. In fact, Watters was surprised her car was not scraped by Mayer's as it passed.

Watters did not directly observe plaintiff being hit but heard a thump and "saw the tail end of her flying and then her son yelling for her." Watters had not heard a car horn honk or breaks screeching before plaintiff was hit, nor had she observed Mayer's car veer away from the parked cars.

Plaintiff sustained a number of injuries as a result of the accident including, among others, a lip laceration; a knocked out tooth forced back into her mouth; facial abrasions; a large cut on her left leg; bruising to the right leg; pain in the neck, jaw, elbow, pelvis, right knee and right hip; and severe headaches. Some of these injuries, according to her treating physicians, have resulted in permanent damage.

Specifically, Dr. Steven Dudick, a plastic surgeon, treated plaintiff's facial injuries. She presented with multiple contusions, abrasions, bruises, and scrapes on her face, chin, and cheeks. These injuries left pigmented areas and lines on her face and some "traumatic tattooing," which is caused by debris healing in the wound. Some of this could be aided with laser resurfacing of this skin.

More significantly, plaintiff had an "avulsion laceration" of the lower lip, meaning a chunk of tissue was missing from the lip, and there was a distally based flap, which is essentially a U-shaped piece of skin getting blood flow from only the bottom portion of the U. Plaintiff's avulsion was complex, meaning skin and muscle were missing, and its repair required reconstruction of the muscle layers, mucosa, and inner and skin portions of the lip. Dr. Dudick had to debride plaintiff's lip, i.e., cut away the dead and bruised tissue, and then advance the tissue from either side of the laceration to make up for the skin loss. The result was that plaintiff was left with a firm scar on her lower lip and a small mass on the inner portion of the scar that could be an inclusion cyst.

Dr. Dudick also treated plaintiff for the trauma to her left and right thighs. Her right thigh had palpable bumps, formed by scar tissue from bruising, which might soften over time, and hyperpigmentation. Plaintiff's left thigh had a four centimeter-long, hypertrophic, or elevated, scar on it, and a depression formed by atrophy of the fat cells, which occurs after a bad bruise or hematoma seeps blood into the tissue. The hypertrophic scar was about one-quarter of an inch wide, and had a red, purplish color.

During surgery, Dr. Dudick excised much of the scar and a firm mass located near it, leaving plaintiff with "the best possible scar for the area." In treating the other condition in her left thigh, Dr. Dudick transplanted fat cells from plaintiff's abdomen and injected them into the depression, leaving plaintiff with a red area that would fade some in the next year. Overall, the depression and scars were permanent, but the hyperpigmentation improved with time, leaving fine spider veins over the areas of contusion. In Dr. Dudick's opinion, the scars present four years post-accident would remain for the rest of her life.

Dr. Michael Sclafani, an orthopedic surgeon, treated plaintiff's right knee and neck injuries. After the accident, plaintiff's right knee was swollen with moderate effusion, or fluid in the knee joint. An examination showed the right knee had a Grade III, or complete, medial collateral ligament tear. The tear meant plaintiff's bones would shift apart when walking and allow the knee to buckle unless fixed. An MRI further revealed a tear in the medial meniscus, which is the cartilage between the bones, irreparable save for surgery, and a bruise of the lateral tibia plateau, which meant plaintiff's knee was hit so hard it bled into the bone.

After some physical therapy, plaintiff underwent arthroscopic surgery on the right knee to remove the cartilage tear and also repair irregularities found on plaintiff's kneecap cartilage. The medial collateral ligament tear healed itself. According to Dr. Sclafani, once cartilage is torn and removed, a patient does not return to a pre-injury condition, and plaintiff here will have permanent problems with her knee, i.e., constant clicking and grinding, secondary to the loss of cartilage, such as early on-set arthritis, possibly even requiring a total knee replacement.*fn2

Dr. Patrick McDermott treated plaintiff for her dental injuries three weeks after the accident, when she first presented at his office with a left maxillary central incisor, upper front tooth, that had been avulsed, knocked out, and reimplanted at the hospital with a semi-rigid splint wiring it to her other teeth. All four of plaintiff's front teeth were still mobile at the initial appointment. In fact, the evulsed tooth, number nine, was misaligned, extruded down and tipped inwards toward the tongue, resulting in additional trauma each time plaintiff bit down.

In order to immobilize tooth number nine, the semi-rigid splint was removed, and Dr. McDermott bonded teeth eight, nine, ten and eleven together for rigidity. Plaintiff was also given a night guard because she was clenching her teeth and a daytime splint to hold her teeth together. One year later, plaintiff's front teeth had discolored due to the trauma, and tooth nine was still mobile which required the doctor to permanently splint it to the surrounding teeth to prevent total decay. Because they are joined, plaintiff can no longer floss her teeth normally.

Plaintiff further had numbness in her mouth and tip of her tongue and clicking in her jaw so was referred to a temporomandibular joint (TMJ) specialist. In the long term, plaintiff will, in all likelihood, loose tooth number nine and has a high probability of losing tooth number ten.

Dr. Alvin Krass, a psychologist, first saw plaintiff twoand-one-half months after the accident, when she presented with loss of concentration and memory and inability to recognize familiar objects. Plaintiff was diagnosed with post-traumatic stress disorder with panic attacks and ongoing anxiety resulting from the accident.

Plaintiff underwent psychotherapy in 2004, stopped, and returned in 2005 because she was having difficulty concentrating, conflicted social relationships, and anxiety over her children and dealing with their concerns. Plaintiff's symptoms subsided and then recurred in 2006 and 2007, and included anxiety that she would not be able to fulfill her responsibilities as a full-time instructor at Brookdale Community College because of her memory problems. Dr. Krass concluded that plaintiff's symptoms were chronic in nature. Among her neuropsychological injuries were problems in concentration, memory function, ability to handle calculation issues, and a general sense of unease.

At the time of the accident, plaintiff was a thirty-six year-old single mother raising two young children. She led an active life and was involving in running and the martial arts. Prior to the accident, she never experienced problems spelling, speaking, or memorizing; nor did she suffer from depression or anxiety.

Plaintiff sued Mayer for negligence. Prior to trial, plaintiff moved in limine to admit certain portions of Mayer's deposition regarding her taking methadone three times daily for pain, and her use of an aide on weekdays to drive her to and from doctor's appointments. The judge refused to admit the methadone testimony but allowed reference to Mayer's driver aide.

At the close of evidence, plaintiff moved for a directed verdict on liability and permanency of damages. The judge denied the motion as to liability, deeming this a comparative negligence case that should be decided by a jury. However, the judge entered a directed verdict for plaintiff on the issue of permanency of injuries, finding plaintiff's proofs had, without question, vaulted the verbal threshold of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35. He concluded:

I find that without question that the plaintiff has suffered permanent injuries.

And the injuries do without question comply with the statute. I'm going to direct the verdict on the issue of permanency and the other thing that's going to go to this jury is going to be the issues of liability, negligence and comparative negligence. I'm not even going to send an interrogatory to them on the issue of permanency with the box checked off. And that's my ruling.

As noted, the jury returned a verdict finding Mayer 100% at fault and awarding plaintiff $2,320,000 in damages. Defendant subsequently moved for a new trial or, in the alternative, remittitur of the jury's damages award. As to the former, defendant maintained that it was prejudicial error to admit evidence of Mayer's driver aide and that the permanency of plaintiff's injuries was a factual question for jury resolution. The judge rejected these contentions, denying the motion for a new trial as well as remittitur. As to liability, the judge reasoned:

This was a situation where, with reference to the issue of liability I think [plaintiff's counsel's] comment to the jury that defendant should not have been on the road is fair comment. Her testimony in the deposition clearly indicated that there was serious misgivings about her ability to operate a motor vehicle. And it was certainly germane to the issue here.

This is an accident that happened in broad daylight, in the middle of the day in a high traffic area where there was a lot of activity around the school. The defining witness in this case, insofar as liability is concerned, is Mrs. Wat[t]ers. She's the one who made the observation that the Mayer vehicle . . . was significantly misaligned to the rest of the line of traffic. And there was an ample photographic record of the roadway in question.

And basically my take on it is that Mrs. Kaminski, I think was blindsided. I think she was hit from the rear, because that's the only way you could account for some of the injuries that she sustained. And that Mrs. Mayer was 100 percent responsible. I don't find that there was anything that Mrs. Kaminski did that caused this accident. [Defense counsel] argued this case to the jury on the issue of liability, and they found otherwise. I'm not going to disturb that.

And I find that there is absolutely more than ample evidence in the record to indicate that Mrs. Mayer . . . was responsible for the injuries that were sustained.

As for plaintiff's injuries, the judge reiterated those he considered to be permanent in nature including a chunk of lip missing, necessitating surgery to put the bottom of her mouth back together; a tooth driven out of her mouth that had to be bonded to other live teeth; a dent on her thigh where fat cells atrophied that necessitated reverse liposuction, a permanent J-shaped scar on her face, and chronic post-traumatic stress disorder. The court further compared a photograph of plaintiff from before the accident with her radically different appearance at trial. Thus, as to permanency of injuries and damages, the court stated:

[Plaintiff] clearly had permanent physical injuries that no reasonable man could disagree with. And that's why I decided to direct a verdict on that. I found that there was absolutely no evidence whatsoever to the contrary. And every one of the injuries that I indicated is a full and permanent injury. This is not some nebulous soft tissue case . . . .

This woman suffered severe and blunt trauma[,] and it has affected her. It affected her then, it affected her during the course of treatment, it was clearly visible to me during the course of trial. And I think that this woman has a lot of baggage as time goes on, both physical and emotional. And therefore, this is the reason why the only issues I wanted this jury to decide was issues of liability and issues of damages.

The amount of damages in this case was left to the sole and exclusive discretion of the jury. They were charged pursuant to the normal charge that I give. And a part of that charge is that the law can give the jury no better yardstick to measure damages than their own common sense, and it is left to their sound discretion. The jury in this case came in with what they believed to be the appropriate amount of compensation for this person for her injuries.

I find nothing in the record that shocks the conscience of the [c]court and I am therefore not going to disturb the verdict. The motion is denied.

Post-judgment, on October 4, 2007, plaintiff moved to amend the order of judgment to substitute the Estate of Virginia S. Mayer as defendant. Initially, the Estate opposed plaintiff's motion, intimating that a substitution would cause it to be irrevocably prejudiced, and be contrary to due process, since it was not given a chance to assert a position at trial. However, the Estate eventually reached an agreement with plaintiff whereby it would withdraw its opposition, join in plaintiff's request for modification, and assign its rights to plaintiff to pursue a bad faith claim against First Trenton for the excess verdict in return for being relieved of financial liability.*fn3

After granting First Trenton's motion to intervene, and hearing argument, the judge granted plaintiff's application to amend the order of judgment to substitute the Estate as the proper party defendant. The court concluded:

That [the assignment] having been done, I don't understand how basically -- and I let First Trenton intervene because it's got a duty to defend and indemnify the defendant. I let it intervene to see how it can assert a standing in this regard. But I just disagree that you have the standing to take the position of the estate once the estate has taken the steps that it has to assign its rights to the plaintiff.

If [the Estate] were here today griping about it, I probably wouldn't even be speaking to you.

But it seems to me that the moment before that trial was to start or shortly before that trial was to start, if somebody had said hey, we should amend, this has to be amended to the estate of, and if the issue arise, well, call the estate rep and see if they have any objection to it. Big deal. It wouldn't be a problem.

But the case went forward. And nobody objected. Nobody screamed. Nobody raised any issues. And I'd like to think that people weren't playing games at the time. I just think it, to me it was what I would think is a mechanical oversight and it happened.

And this was one of those cases where in the meantime, a verdict came in, it was in excess of the policy limit.

I will stick my neck out and say that if the verdict came in at $490,000, I would stick my neck out and say if there were an appeal, the appeal would be maybe that the verdict is excessive. But I'd be shocked if anybody said the verdict was a nullity even if the lady was dead.

So I just find that what happened here, we wouldn't be in this problem and we wouldn't be in this predicament but for the fact of a verdict in excess of the policy limits. And I just don't find that the First Trenton has the right to object to what [Estate's counsel], on hindsight, has done on behalf of the estate.

I just find that at this time, it's a clerical amendment. It has some significance, but it's a clerical amendment.

So that's how I'm going to rule.

On defendant's appeal, the Estate argues the following:

I. THE TRIAL COURT ERRED BY ALLOWING THE ADMISSION OF DEPOSITION TESTIMONY INFORMING THE JURY THAT THE DEFENDANT USED AN ASSISTANT TO DRIVE HER TO DOCTOR APPOINTMENTS SEVERAL WEEKDAYS EACH WEEK THEREBY PERMITTING THE JURY TO INFER THAT THE DEFENDANT WAS INCAPABLE OF DRIVING.

a. The admission of deposition testimony concerning Ms. Mayer's use of an assistant several weekdays each week was improper as such evidence had no probative value on the issue of Ms. Mayer's negligence in causing the accident and was substantially outweighed by its prejudice.

b. The prejudice caused by the improper admission of deposition testimony concerning Ms. Mayer's use of a weekday driver several weekdays per week tainted the jury's comparative negligence finding.

II. THE TRIAL COURT ERRED BY FINDING THE PLAINTIFF'S INJURIES TO BE PERMANENT AS A MATTER OF LAW, THUS REMOVING THE ISSUE OF PERMANENCY UNDER THE VERBAL THRESHOLD FROM THE JURY.

III. THE COURT ERRED BY DENYING DEFENDANT[']S MOTION FOR A NEW TRIAL OR IN THE ALTERNATIVE, REMITTITUR, BECAUSE THE JURY AWARD WAS SO GROSSLY EXCESSIVE THAT IT SHOCKED THE CONSCIENCE AND WAS THE PRODUCT OF PASSION, PREJUDICE AND/OR PARTIALITY.

On intervenor's appeal, First Trenton raises the following issues:

I. THE COURT RULES DO NOT AUTHORIZE AN AMENDMENT OF THE JUDGMENT TO SUBSTITUTE THE ESTATE AS DEFENDANT UNDER THE FACTS AND CIRCUMSTANCES PRESENTED HERE.

a. Plaintiff's motion to alter or amend the judgment pursuant to R. ...


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