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Simko v. Blue

May 25, 2010

JONATHAN SIMKO, PLAINTIFF-APPELLANT,
v.
SCOTT R. BLUE, MONMOUTH-OCEAN HOSPITAL SERVICES CORPORATION, DEFENDANTS-RESPONDENTS, AND MCNEIL & COMPANY, DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2845-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 16, 2010

Before Judges Wefing, Messano and LeWinn.

Following a jury trial in this motor vehicle accident case, judgment was entered in favor of plaintiff Jonathan Simko, and against defendants Scott R. Blue, and his employer, Monmouth-Ocean Hospital Services Corporation, in the amount of $15,000, plus pre-judgment interest, reflecting plaintiff's non-economic damages.*fn1 The jury rejected plaintiff's claim for lost earnings as a result of his injuries. Plaintiff subsequently moved for a new trial on damages, or, alternatively, for additur. The trial judge denied that motion, and this appeal ensued.

Plaintiff contends that the judge committed reversible error by instructing the jury to disregard: 1) his testimony regarding a loan from his mother that was used to fund the start-up costs of his motorcycle repair business that allegedly failed as a result of his injuries; and 2) plaintiff's personal opinion regarding the financial viability of that business. Plaintiff also argues that the judge committed reversible error by permitting defendant to testify.*fn2

We have considered these arguments in light of the record and applicable legal standards. We affirm.

Plaintiff obtained partial summary judgment pre-trial on the issue of defendant's negligence, and, therefore, the trial proceeded on the issues of causation and damages only. The salient evidence demonstrated that plaintiff was injured while stopped at a traffic light when his car was struck in the rear by a vehicle driven by defendant and owned by his employer. Plaintiff suffered injuries that resulted in lower back surgery and a recommendation for future surgery on his cervical spine.

On the date of the accident, plaintiff was the sole proprietor of a motorcycle repair shop that he had opened six months earlier. He claimed that as a result of his injuries, he was forced to close his business. Plaintiff further claimed that he had invested an undisclosed amount of savings in the business, as well as $57,000 that had been loaned to him by his mother. Plaintiff opined during testimony that "the venture . . . was going to be successful . . . ."

Defendants objected to the testimony on two grounds. First, they asserted surprise because plaintiff never notified them of any claim for economic damages based upon the loss of his business. Second, they noted that this claim was contrary to the report and deposition testimony of plaintiff's identified expert, Dr. Robert Wolf. Wolf, who ultimately testified before the jury, opined that plaintiff sustained lost earnings of $494,720 as a result of the injuries from the accident and his inability to work as a motorcycle mechanic. However, Wolf also testified that any claim of lost profits from plaintiff's business was "speculative," given the high failure rate of new businesses and the general economic climate.

The judge overruled defendant's objection to plaintiff's testimony, but noted that she would deal with the issue in her jury charge.

Over plaintiff's objection, defendant testified.*fn3 A paramedic with "nearly 18 years" of experience, defendant exited his vehicle after the collision to see if plaintiff was hurt and if he needed help. Plaintiff said he was "fine" and did not need an ambulance. Defendant described the impact as "light to medium."*fn4

Defendants' "employability expert and . . . vocational counselor" opined that plaintiff was not disabled by the accident, but was employable in various positions that were "sedentary and light where he could intermittently sit and stand during the course of the workday." Defendants' orthopedic surgical expert ...


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