The opinion of the court was delivered by: Hughes, M.J.
This matter is before the Court upon the Motion of Plaintiff April Britt ("Plaintiff") for a New Trial on Damages [dkt. entry no. 41], returnable February 17, 2009. Defendant Donald Einhorn ("Defendant") filed opposition to this Motion on January 29, 2009.
II. BACKGROUND AND PROCEDURAL HISTORY
This case arises from a motor vehicle accident involving Plaintiff and Defendant "that occurred on February 1, 2005 at approximately 6:48 p.m. at or near the intersection of Route 31 Southbound and Payne Road in Clinton Township, NJ." (Pl.'s Br. at 1.) After the Court granted Rule 50 motions in favor of the Plaintiff on the issues of Defendant's Negligence and causation, and the lack of causal negligence on the part of the Plaintiff, the Court submitted the assessment of damages to the jury. "The jury returned a verdict in favor of the Plaintiff and against Defendant for damages as follows:
Pain and Suffering:$10,000.00
Past Unreimbursed Medical Expenses:$2, 389.09
Total Verdict:$19, 389.00
Id. at 1-2. On the issue of damages, the Plaintiff presented two treating physicians who testified that as a result of the accident the Plaintiff developed Complex Regional Pain Syndrome, which was debilitating and resulted in her total permanent disability. Id. at 2. Plaintiff also presented testimony from "a vocational expert who testified that Plaintiff had lost past wages of over $33,000.00, lost future earning capacity of $380,819.47 and loss of household services of $305,000.00." Id.
A. Plaintiff's Arguments in Support of the Motion for a New Trial on Damages
Plaintiff makes five arguments in support of her Motion for a new trial on damages. Specifically, Plaintiff argues that (1) the Court committed prejudicial error and plain error in instructing the jury on the issue of the failure to mitigate damages where there was insufficient evidence of failure to mitigate damages to go to the jury; (2) the Court erred by allowing Aaron Sporn, M.D. to base his opinion upon a surveillance tape and to testify to opinions contained in his second report that was submitted in violation of the discovery rules and Court Order; (3) the verdict was inadequate; (4) the verdict was against the weight of the evidence; and (5) the Court committed prejudicial and plain error in failing to give an adequate charge on causation. (Pl.'s Br. at 3- 4.)
Plaintiff argues that she is entitled to a new trial on damages because Defendant failed to present any evidence to support a failure to mitigate damages charge, and merely made the argument "that the Plaintiff failed to undergo a stellate ganglion block which would have relieved her suffering." Id. at 5. Plaintiff's expert Dr. Mortazavi testified that he explained to Plaintiff that while a stellate ganglion block is generally safe, it does have substantial risks including death. Id. at 6. Therefore, "Plaintiff decided against the block because she felt the risks outweighed the benefits, a decision which Dr. Mortazavi supported." Id. Plaintiff argues that she "cannot be said to have failed to mitigate damages by failing to risk her own life in declining a surgical procedure, which a stellate ganglion block is." Id. at 6-7. (citing Cannon v. New Jersey Bell Telephone, 219 N.J. Super 304, 315 (App. Div.. A.D.)) (holding that defendant did not present sufficient evidence to justify an instruction on plaintiff's duty to mitigate and because "the undisputed evidence demonstrates sufficient risk incident to the surgery to warrant a reasonable person to decline as a matter of law.") Therefore, Plaintiff further argues that "the Court erred in submitting the issue of mitigation of damages to the jury . . . [because] it is very highly likely that it did affect the outcome of the case, given the unreasonably low verdict for pain and suffering in the face of admitted injury."
Plaintiff argues that the Court erred by allowing Dr. Sporn to express his opinions based upon video surveillance because (a) a significant portion of the video relied upon was not even of Plaintiff, but was of the Plaintiff's mother and (b) no testimony was offered that surveillance videotapes are customarily relied upon by physicians in forming opinions. Id. at 12-13. Plaintiff also argues that the Court erred by allowing Dr. Sporn to testify to opinions contained in a second report that reversed his original opinion on permanency because the report was out of time and submitted after Plaintiff took trial depositions of her experts. Id. Specifically, Plaintiff contends that "there is authority to support precluding an IME doctor from commenting upon surveillance videotapes because it is not the type of evidence customarily relied upon by medical experts." Id. at 15 (citing Kimberly Clark Corp. v. W.C.A.B. (Bullard), 790 A.2d 1072, 1076 (Pa. Cmwlth. 2001). Plaintiff also contends that "it was plain error to allow Dr. Sporn to testify to opinions without holding said opinions to a reasonable degree of medical certainty, which he never testified to." Id. at 16.
Next, Plaintiff argues that a new trial on damages is required because the verdict was inadequate. Id. at 19. Specifically, Plaintiff asserts that "[t]he verdict instantly was legally inadequate and shocks the conscience, and was plainly wrong, grossly undervalued and/or failed to compensate Plaintiff for omitted items of damage." Id. at 21. Plaintiff also asserts that "New Jersey Courts have available the remedy of additur, but it has been held that the Federal Courts cannot apply additur because it would violate the Seventh Amendment right to jury trial. Therefore, if the New Jersey Courts would grant relief based upon additur, the Federal Court's only choice would be to grant a new trial." Id. at 20.
Plaintiff argues that the verdict was against the weight of the evidence; thus, she is entitled to a new trial. Id. at 21. Plaintiff contends that "[t]he only medical evidence defendant offered was that of Aaron Sporn, M.D., who did not offer his opinions to a reasonable degree of medical certainty [and] [u]nder New Jersey law, medical expert testimony must be made with [a] reasonable degree of certainty." Id. at 22 (citing Bondi v. Pole, 246 N.J. Super,. 236, 587 A.2d 285 (App. Div. 1991)). Plaintiff asserts that besides the fact that Dr. Sporn's opinions were not expressed to a reasonable degree of medical certainty, "his opinion was based upon a false assumption that the Plaintiff was pictured in the video performing overhead range of motion activities . . . when in fact the individual in the video was Plaintiff's mother." Id. at 23. Plaintiff also asserts that "she had far more than $7,000.00 in lost wages under any calculation for those 3 years . . . [because] it was established on the record, but not in front of the jury that Plaintiff had collected $15, 000.00 in past wages in maxing out her first party wage benefits." Id. Therefore, Plaintiff contends that the verdict is obviously against the weight of the evidence and a new trial on damages should be granted.
Lastly, Plaintiff argues that the Court committed prejudicial and plain error in failing to give an adequate charge on causation despite a request for the same. Id. Plaintiff maintains that "[t]he Court gave essentially no instruction on proximate cause and did not define the term, having used it[,] [when] '[t]he trial judge has a mandatory duty to charge the jury on the fundamental principles of law which control the case[.]'" Id. at 26 ...