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Schneider v. Estate of Thullsen

January 23, 2009

DANIEL J. SCHNEIDER, PLAINTIFF-APPELLANT,
v.
THE ESTATE OF GEORGE THULLSEN, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-7155-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 5, 2009

Before Judges Lisa and Reisner.

By leave granted, plaintiff Daniel J. Schneider appeals from a trial court order dated March 12, 2008, reducing a $200,000 verdict in plaintiff's favor to $125,000, and a second order, dated April 11, 2008, denying plaintiff's motion for reconsideration. Because we conclude that the trial court's stated reasons for granting the remittitur do not satisfy the applicable standards, as recently highlighted by the Supreme Court in Jastram v. Kruse, ___ N.J. ___ (2008),*fn1 and because the record presented to us on this appeal cannot support remittitur, we reverse and remand for entry of an order reinstating the $200,000 verdict.

I

Although the parties have not provided us with the trial transcripts, we infer from the briefs and counsel's concessions at oral argument that the following evidence was presented at the trial. This case arises from an automobile accident that occurred on January 5, 2004, when defendant's vehicle struck plaintiff's vehicle from the rear. Defendant conceded liability. At the trial, the jury heard testimony from plaintiff, his expert Dr. Farber, and defendant's expert Dr. Gross.

Plaintiff began receiving treatment shortly, but not immediately, after the accident. He went through two years of medical treatment, including injections in his neck to try to relieve his headaches. His doctors eventually told him that further treatment would not be helpful. Therefore, at the time of the trial in November 2007, he had not had any treatment for his condition for almost two years.

Both doctors agreed that plaintiff has a herniated disc in his neck at C-4, C-5. Plaintiff's doctor testified that the injury was caused by the accident; defendant's doctor testified that it was not caused by the accident. In response to a question from the jury, plaintiff's doctor testified that plaintiff's neck will not return to normal function even with further treatment. He explained that plaintiff has an unusually long neck, and that a combination of lack of support from the shoulder muscles and scar tissue from the injury makes plaintiff's herniated disc particularly difficult to remedy.

According to plaintiff, he experiences neck pain, as well as shooting pains down his shoulders and arms, on a regular basis.*fn2 He regularly takes over-the-counter pain medications. He has continuing limitations on the range of motion of his neck, which causes him to have difficulty in performing household chores or caring for his infant daughter. He had a very active lifestyle before the accident, but now cannot engage at all in skiing and swimming and is limited in his ability to engage in other activities such as golf. Plaintiff did not miss time from his work as a salesman. Plaintiff is relatively young, and his counsel argued the time-unit rule to the jury. See R. 1:7-1(b).

By a vote of seven to one, the jury found that plaintiff suffered a permanent injury caused by the accident. The jury unanimously awarded him $200,000 for pain and suffering.

Defendant filed a motion for a new trial or in the alternative for remittitur. In an oral opinion, placed on the record on February 15, 2008, the trial judge denied the new trial motion:

[T]here really is no manifest injustice here in a verdict in favor of the plaintiff.

. . . The plaintiff as I recall was a very sympathetic, credible young man who did not exaggerate his symptoms, he did not seek overwhelming medical treatment. As [defense counsel] points out it was in effect a two year period before ...


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