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Kearney v. Clifford

November 9, 2010


On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket Nos. L-3682-06 and L-5-07.

Per curiam.


Argued April 20, 2010

Before Judges Skillman, Fuentes and Gilroy.

This is a consolidated personal injury negligence action. Defendant Corey Clifford appeals from the April 28, 2009 order that entered judgment against him based on a jury verdict in the amount of $17,550,000, together with prejudgment interest. Defendant also appeals from the May 15, 2009 order that denied his motion for a new trial, or, in the alternative, for a remittitur. We affirm in part, reverse in part, and remand to enter an amended judgment.


On August 5, 2006, plaintiff Jennifer Roden operated her automobile in Parkertown, with her then husband, Alvin Roden, seated in the front passenger seat, with the parties' son Gavin Roden, and Jennifer Roden's two daughters, Victoria Kearney and Madeline Kearney, seated in the rear passenger seat. While the Roden vehicle proceeded northbound on East Main Street, defendant Corey Clifford, operating a vehicle owned by his father, defendant Colin Clifford, proceeded in the opposite direction on the same street. Suddenly and without warning, the Clifford vehicle crossed the center dividing line on the roadway and struck the Roden vehicle head-on. The Roden vehicle was then struck from behind by a vehicle operated by defendant Casey Walsh. The Clifford vehicle was insured by New Jersey Manufacturers Insurance Company (NJM) with a combined $500,000 single limit liability insurance policy.

On November 20, 2006, Alvin Roden and the minor plaintiffs filed a personal injury negligence action against defendants Corey Clifford, Colin Clifford, and Casey Walsh. Jennifer Roden filed a separate complaint on December 18, 2006.*fn1 On April 27, 2007, the trial court consolidated the two actions.*fn2

On November 7, 2007, one of plaintiffs' counsel sent a letter to defense counsel demanding that NJM deposit the insurance policy proceeds into court. NJM did not comply with the demands. On November 7, 2008, defense counsel sent plaintiffs' counsel a letter advising that he had obtained authority from NJM to offer $478,122.81 in full settlement of all claims, said amount representing defendant's policy limits, less $21,877.19 previously paid to Jennifer Roden on her automobile property damage claim. Plaintiffs' rejected the offer to settle.

On November 13, 2008, defendant filed a motion seeking to deposit the balance of his insurance policy proceeds into court. The court granted the motion, and defendant deposited the insurance proceeds on January 14, 2009. On March 30, 2009, the matter proceeded to trial on the issue of damages only, defendant having stipulated to liability.


Plaintiffs Jennifer Roden and Alvin Roden testified on their own behalf and in support of the children's claims. Although the children were present in court, they did not testify themselves. Plaintiffs also presented testimony of four medical experts via de benne esse videotape depositions: Dr. Loretta Christensen, a board certified trauma surgeon, testified to the injuries sustained by the three minor children; Dr. Arthur Mark, an orthopedic surgeon, testified to the injuries suffered by Gavin Roden; Dr. Aaron Green, an orthopedic surgeon, testified to the injuries suffered by Jennifer Roden; and Dr. Robert Dengrove, a board certified forensic psychiatrist, testified to his psychological evaluation of Jennifer Roden. Defendant did not present any medical witnesses to refute plaintiffs' experts' testimony. The testimony and exhibits introduced at trial evidenced that plaintiffs suffered the following injuries in the accident.

Gavin Roden

Gavin Roden*fn3 was three-and-one-half months old at the time of the accident. Following impact, Gavin was transported by emergency personnel to the Southern Ocean County Hospital where he was evaluated and released. Within days, Gavin was brought back to the hospital after his great aunt noticed swelling of his right leg and that upon movement of the leg, Gavin cried. X-rays revealed a fracture of Gavin's femur. On August 7, 2006, Southern Ocean County hospital transferred Gavin to Jersey Shore University Medical Center (JSUMC) in Neptune, where he came under the care of Dr. Mark. Dr. Mark placed Gavin in a "Pavlik" harness, an immobilizing device used on children because their bones are still growing.

Dr. Mark described Gavin's discomfort while using the brace for four to six weeks as "the idea [of using the brace] is that the brace will keep the legs or the hip joint flexed at 90 degrees and the knee flexed at 90 degrees so that the hip will stay still." Individuals using the brace "have to either remain on their back or in a seated position. Their legs are always flexed at 90 degrees, both the hip and the knee at all times with the brace on." Lastly, the doctor opined that he believed Gavin would have permanency of "some minor limp disturbances" from the leg injury.

While at JSUMC, Gavin underwent a neurological examination that revealed "extra axial cerebrospinal fluid space," that is, fluid collecting between the brain and its covering. Gavin's treating pediatrician raised a concern that the child's head had grown abnormally large. On September 22, 2006, a CAT scan, disclosed hydrocephalus, or an accumulation of fluid in the brain. Following the CAT scan, JSUMC transferred Gavin to the Children's Hospital of Philadelphia (CHOP), where he was seen by CHOP's neurosurgical service. An MRI disclosed that the child suffered from bilateral chronic subdurals or fluid collecting on both sides of the brain. CHOP treated the condition by implanting subdural peritoneal shunts on both sides of Gavin's head. As described by Dr. Christensen, [t]hey actually go in through that covering [of the brain], place drains, tunnel them out of the brain, in his case down the back.

It goes down along the torso, they make an opening into the abdomen and put the drain into the abdomen so that extra fluid would drain into the peritoneal cavity and therefore relieving pressure on the sides of the brain.

Dr. Christensen opined that the injuries suffered by Gavin were caused by the motor vehicle accident, and that Gavin will require neurosurgical and neurologic monitoring treatment for an indeterminate period of time. She stated that the surgical scars on Gavin's head and stomach are permanent. Lastly, she testified that because of his brain injury, Gavin was at a high risk for further head injury and should always wear a helmet while engaging in daily activities.

Jennifer Roden testified that because of Gavin's head injury, he is not able to run around or participate in sports like other children. She described the back of Gavin's head as being "severely deformed." As of trial, Gavin continued to require use of the shunts, which could be seen beneath the skin. According to Gavin's parents, he has also started experiencing seizures.

Victoria Kearney

Victoria Kearney was four years old at the time of the accident. At the accident scene, paramedics diagnosed Victoria as suffering from abdominal tenderness and a "large evulsion wound of the scalp" which pulled "off all the layers [of skin] and expose[d Victoria's] skull." Victoria required intubation while in flight to Cooper University Hospital because she became "less responsive to stimuli"; she remained intubated until the next day.

At Cooper Hospital, Victoria was admitted into pediatric intensive care. When discharged on August 11, 2006, Victoria's discharge summary listed her diagnoses as: (1) mesenteric and colonic hematoma, (2) lung contusion, (3) subdural hematoma with closed head injury, and (4) degloving injury of the scalp. Surgeons performed plastic surgery on Victoria's scalp wound and performed exploratory abdominal surgery during which surgeons removed Victoria's appendix. Victoria now has a scar that reaches "from the hairline down just above the eyebrow and back up into the hairline" and a second scar on her abdomen from beneath her navel to her ribs. Jennifer Roden testified that Victoria is self-conscience of anyone seeing the scars on her stomach and forehead.

Dr. Christensen opined that Victoria's injuries were caused by the automobile accident. The doctor also testified that since the accident, Victoria has been treated for an exacerbation of attention deficit hyperactivity disorder symptoms.

Madeline Kearney

Madeline Roden was six years old at the time of the accident. When the accident occurred, she had been restrained by the rear passenger seat lap belt. Initial examinations of Madeline at the accident scene and at Cooper Hospital revealed abdominal tenderness and "no observed motor movement of the lower extremities and 'questionable' sensation of the lower extremities." Within three days, Madeline was experiencing an "unrelenting headache with photophobia" consistent with a concussion, and displaying "emotional distress." Nine days after the accident, Madeline was transferred to Children's Specialized Hospital (CSH) at Mountainside, with a diagnosed spinal cord injury. At CSH, physicians treated Madeline for "paraplegia" or "a compromise of motor or sensory functions of [her] two [lower] extremities." She also suffered from a "neurogenic bladder and bowel," requiring catheterizations every four hours. Madeline was in in-patient rehabilitation at CSH for approximately three months.

Dr. Christensen opined that Madeline is presently a "paraplegic from the waist down," and because of her spinal cord injury, she now must use a wheelchair or a reverse walker, and ankle foot orthotics to stabilize her feet, to prevent foot drop and toe drag. She can use crutches for short distances. While she is able to urinate independently by self-catheterizations, she still needs to wear diapers because of episodes of incontinence. According to Jennifer Roden, Madeline's diapers are changed six to eight times per day.

Lastly, Dr. Christensen testified that because of the severity of Madeline's spinal cord injury, she is at an increased risk to suffer future health problems and has a shortened life expectancy. According to Dr. ...

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