On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket Nos. L-4527-04 and L-5416-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Baxter and Alvarez.
Plaintiff, Michael Pinto, appeals from a March 14, 2008 order that granted the remittitur motion of defendant, Bruce Morgan, thereby reducing the jury's award of $1.5 million to $400,000, and from an April 28, 2008 order that denied his motion for reconsideration. We agree with plaintiff's argument that the trial judge: improperly substituted her opinion on damages for that of the jury; relied on an analysis of purportedly similar cases without ever determining whether the plaintiffs in question suffered injuries that were similar to plaintiff Pinto's; improperly considered verdicts from trials over which she had not presided, and based her conclusions about those trials on the squibs provided in a legal periodical; and concluded that the verdict was the result of the jury's desire to "punish" defendant Morgan because they were offended by his "lack of remorse" and vulgar language, even though the record is devoid of any objective evidence supporting the judge's conclusion that the jury was influenced by such factors. We reverse the order of remittitur and reinstate the jury's verdict. We also deny defendant Morgan's motion for temporary remand.*fn1
On the morning of July 4, 2002, plaintiff, then thirty years old, was riding his motorcycle when defendant Morgan suddenly pulled out in front of him. To avoid hitting Morgan's pickup truck or other vehicles, plaintiff swerved his motorcycle to the right, where it began to skid, ultimately hitting a curb. The impact with the curb caused plaintiff to crash into the windshield and mirror, shattering both, and to be thrown over the handlebars onto an adjacent lawn. Plaintiff was taken by ambulance to JFK Hospital in Edison, where he was evaluated and released. The next day, his fiancée took him to Rahway Hospital, where he remained overnight, and was discharged with a recommendation for follow-up care. After his discharge from Rahway, plaintiff came under the care of an orthopedist, who prescribed pain medication and physical therapy.
On August 15, 2002, while stopped at a traffic light, plaintiff was rear-ended by defendant, Jane Mullaney. He did not seek emergency room treatment and was not transported to a hospital, but continued his treatment with the orthopedist. Because physical therapy was not helpful, and in fact exacerbated the pain on his left side, plaintiff's physician referred him to an anesthesiologist, who administered a series of epidural injections in plaintiff's neck. Those injections were also not helpful.
To repair the extruded discs in his cervical spine, another specialist recommended that plaintiff undergo fusion surgery, which would have involved removing a piece of bone from plaintiff's hip and inserting it between two vertebrae to fuse the two together. Plaintiff decided to avoid the surgery because he had "seen too many people have more complications after having a procedure like that."
Because of plaintiff's continuing pain in his left shoulder, he was eventually referred for further testing, which disclosed a SLAP tear (superior labrum anterior posterior), for which he underwent surgery. Plaintiff also testified that although an earlier x-ray had not revealed it, a later x-ray showed he had sustained a fractured rib during the motorcycle accident involving Morgan. In addition to the extruded cervical disc, plaintiff was also advised by his treating physician that he had sustained herniated discs in his thoracic spine and bulging discs in his lumbar spine.
When asked to describe the impact of the injuries on his life, plaintiff commented that for quite a while following the motorcycle accident, he was in considerable pain, stating "[p]retty much the couch was my new home." He explained that he could not sleep in a bed because if he rolled over on his left side he would be awakened by the pain, so he chose to sleep on the couch "pretty much propped up." Plaintiff also described how his "life kind of changed in different ways." He testified that he was forced to give up saltwater fishing, which he had enjoyed, because pain from the jarring movement of the boat slapping on the waves caused "more . . . aggravation" than "enjoyment."
He also described limitations on his ability to ride a motorcycle. We quote that portion of his testimony in its entirety because plaintiff's ability to ride a motorcycle became the subject of a post-trial motion, which we describe later. Regarding his ability to ride his motorcycle, plaintiff testified:
The other thing was, too, I didn't ride a motorcycle all the time but that was something that I enjoyed because you could ride a bike -- that was my tranquility in a way where I could ride a bike and I would enjoy it. It's like different people have different hobbies and that was my hobby. I liked riding bikes. And I would do it once in a while when things got stressed out or if it was a nice day I'd just like to take a ride for an hour or two. And then -- and that would relax me.
Plaintiff also described difficulty in going to the movies with his wife, as well as problems with reaching, pulling, or lifting objects. He also testified that his left arm is sometimes numb and frequently "gets a tingly feeling . . . like it's asleep." He added that the problems with his left arm had caused him to twice drop an object he had been holding. More important, he explained, the weakness in his left arm had interfered with holding his newborn daughter, who liked being bounced on his knee when she was "colicky." Afraid that he might drop her, plaintiff consequently holds and plays with his daughter less frequently.
Last, he described an adverse impact on sexual relations with his wife because afterward his whole body "tenses up really bad." He explained that because his wife felt "guilty" about the pain he experienced after sexual relations, they were intimate far less frequently. Plaintiff concluded his discussion of that subject by saying, "it bothers me . . . not being with my wife as much."
Plaintiff's direct testimony ended with his identification of a large piece of shattered glass with jagged edges from the windshield of his motorcycle that had shattered on impact with his body.
Plaintiff also produced the testimony of his wife, Christine Pinto,*fn2 who explained the impact of the two accidents on her husband and on their life together. She described her husband having difficulty breathing for the first two months after the July motorcycle accident because of the broken rib, and explained that his back and arm were very painful and interfered with his ability to sleep. Plaintiff's wife also explained that there were many things that her husband "couldn't do around the house that he used to do before," such as mowing the lawn, shoveling snow, helping her put the groceries away, reaching up to remove an object from a shelf, and carrying the laundry basket. She also echoed her husband's description of his difficulty holding their daughter, and underscored the impact that her husband's injuries had had on "the frequency of [their] intimacy."
When asked whether her husband's shoulder had improved after the shoulder surgery of January 2007, she answered:
I don't know that I could say that there was improvement. He was still in pain. He couldn't move his arm. He had a loss of movement in his arm from the surgery, the range of the motion. So to me there -- there was no improvement. He was still in pain and he could move his arm le[ss] than he was able to before [the] surgery.
Mrs. Pinto also testified that her husband tried to avoid complaining about the pain, but because she had known him for fourteen years, she was able to tell "when he's in pain and when . . . he's not." She added, "I think he's kind of come to terms with the fact that he's going to be in pain and he just tries to be as ...