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He v. Miller

December 15, 2009


On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2270-05.

The opinion of the court was delivered by: Fisher, J.A.D.



Argued December 1, 2009

Decided March 27, 2009

Remanded by Supreme Court June 5, 2009

Re-argued November 12, 2009

Before Judges Fisher, Sapp-Peterson and Espinosa.

We again review an order granting remittitur or, upon its rejection, a new trial on damages. We previously reversed, but the Supreme Court summarily reversed in part and remanded for the trial judge's complete and searching analysis, including an assessment of comparable jury verdicts, to be followed by our reconsideration. Having reexamined the matter, we again reverse and reinstate the jury's verdict.


The complaint filed by plaintiff Ming Yu He, and her husband, Jinfang He, against defendant Enilma Miller,*fn1 was tried to a jury over four days in February 2008. The jury found defendant to have been negligent and awarded plaintiff $1,000,000 for pain and suffering, $110,000 for past lost wages, and $500,000 for future lost wages; the jury also awarded plaintiff's husband $100,000 on his loss of consortium claim.

Defendant filed a post-verdict motion seeking a new trial or, in the alternative, a remittitur. The trial judge granted the motion in part. He found the pain and suffering award, as well as the per quod award, to be excessive and shocking to the conscience. He granted a remittitur of the pain and suffering award to $200,000 and the per quod claim to $10,000. The judge also ordered a new trial on damages if plaintiffs rejected the remittitur. Plaintiffs rejected the remittitur and moved for leave to appeal.

We granted leave to appeal and subsequently reversed by way of an unpublished opinion. He v. Miller, No. A-5685-07T3 (App. Div. March 27, 2009) (slip op. at 19).

The Supreme Court granted defendant's petition for certification, summarily reversed our judgment in part and remanded the matter to the trial judge "for a complete and searching analysis under [Johnson v. Scaccetti, 192 N.J. 256 (2007)], including a 'factual analysis of how the award is different or similar to others to which it is compared,' id. at 281." He v. Miller, 199 N.J. 538, 539 (2009). The Court also directed that we reconsider our judgment "in light of the findings developed on remand." Ibid.

On August 12, 2009, the trial judge rendered a decision further explaining and adhering to his finding of excessiveness. The parties have since filed briefs relating to the trial judge's most recent decision, and we have again heard the oral argument of counsel.


In our earlier unpublished opinion, we canvassed the evidence adduced at trial. To summarize, plaintiff Ming Yu He was injured when, on October 28, 2003, her motor vehicle was struck head-on by defendant's vehicle. Plaintiff was rendered unconscious by the impact and transported by ambulance to a nearby hospital. X-rays revealed no fractures and she was discharged. However, due to continuing pain, she visited a chiropractor on three occasions, but received no relief.

On November 6, 2003, plaintiff was examined by Dr. Robert Kramberg, who found a limited range of motion in plaintiff's cervical spine and lower back, back spasms, bruising and abnormal nerve sensation. Dr. Kramberg prescribed various medications, including painkillers. He also started a program of physical therapy.

A few weeks later, in light of plaintiff's continued complaints of pain in her neck, lower back and left knee, Dr. Kramberg ordered magnetic resonance imaging (MRI) of plaintiff's cervical and lumbar spine. The MRI revealed that plaintiff had four herniated or ruptured discs, located at C4-C5, C5-C6, L4-L5 and L5-S1. An electromyography determined that the herniated discs were causing compression of the nerves, which affected plaintiff's arms, legs and back. Dr. Kramberg concluded that plaintiff was suffering from radiculitis or radiculopathy from the herniated discs in both the cervical and lumbosacral spine.

The physical therapy program failed to produce satisfactory results. As a result, Dr. Kramberg referred plaintiff to Dr. Jay Lee, who performed over thirty acupuncture treatments on plaintiff's hands, neck, waist and back. These treatments only provided temporary relief.

Epidural injections of cortisone brought about no significant improvement. Indeed, plaintiff experienced a bad reaction from the cervical epidurals, and the lumbar epidural injections caused plaintiff's leg to become swollen. Consequently, plaintiff received no further injections.

Dr. Kramberg referred plaintiff to a neurosurgeon. MRIs taken at that time were consistent with the earlier findings. The neurosurgeon did not recommend surgery, explaining that "whether or not a spinal patient is referred to surgery depends on the particular patient and particular injury." Dr. Kramberg also observed that not all patients do well with surgery. And once you have a failed surgery, there's nothing else you can do for the patient.

They wind up on lifetime narcotic pain medication.

Dr. Kramberg testified at trial that after five years of unavailing treatment, plaintiff's pain was "chronic [and] permanent." As we explained in our earlier opinion, Dr. Kramberg opined that plaintiff continued to have limited range of motion, and he believed she was medically incapable of performing her job as a housekeeper at a hotel. He continued to prescribe pain medication (Vicodin) to plaintiff and she last saw him in January 2008. In Dr. Kramberg's opinion, based upon the MRI and EMG results, the physical examination, plaintiff's complaints, and the fact that plaintiff had been completely asymptomatic prior to the accident, her injuries were causally related to the October 28, 2003 accident. [Slip op. at 6.]

Dr. Kramberg also acknowledged that testing revealed plaintiff had "a little bit of arthritic degeneration on the vertebrae," which he determined was part of the "normal aging process" and "pretty much consistent with her age, being in her [forties]." Defendant's expert, an orthopedic surgeon, opined that "there's a good suspicion that a lot" of the MRI and EMG findings "are degenerative and pre-existing," but acknowledged "there's really no way of ...

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